Robert Brown v. Illinois Central Railroad Company 00-2349 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________ No. 00-2349 __________________________ ROBERT BROWN, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant-Appellee. __________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division The Honorable Charles Kocoras __________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT __________________________________________ C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202) 663-4734 TABLE OF CONTENTS Page TABLE OF CONTENTS i TABLE OF AUTHORITIES ii STATEMENT OF INTEREST 1 STATEMENT OF FACTS 1 ARGUMENT 8 THE RAILWAY LABOR ACT, IN REQUIRING EXCLUSIVE ARBITRATION OF "MINOR DISPUTES" ARISING UNDER A COLLECTIVE BARGAINING AGREEMENT, DOES NOT DEPRIVE A RAILROAD EMPLOYEE OF HIS FEDERAL STATUTORY RIGHT TO SEEK JUDICIAL RESOLUTION OF HIS CLAIM THAT HE WAS DENIED A REASONABLE ACCOMMODATION IN VIOLATION OF THE ADA. 8 CONCLUSION 20 RULE 32(a)(7)(C) CERTIFICATE OF COMPLIANCE 21 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page CASES Alexander v. Gardner-Denver, 415 U.S. 36 (1974) 10, 11, 12, 18 Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) 13, 14 Atchison R. & S.F. Ry. v. Buell, 480 U.S. 557 (1987) 8, 11, 14, 15 Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728 (1981) 11, 12 Bates v. Long Island R.R. Co., 997 F.2d 1028 (2d Cir.), cert. denied, 510 U.S. 992 (1993) 15, 17, 19 Benson v. Northwest Airlines, 64 F.3d 1108 (8th Cir. 1995) 12, 18 Cleveland v. Policy Management Systems Corp., 119 S. Ct. 1597 (1999) 7 Coker v. Trans World Airlines, 165 F.3d 579 (7th Cir. 1999) 9, 10, 14, 15, 16 Consolidated Rail Corp. v. Railway Labor Execs., 491 U.S. 299 (1989) 1, 9, 17 Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir. 1996) 19 Eckles v. Consolidated Rail Corp., 890 F. Supp. 1391 (S.D. Ind. 1995) 19 Felt v. Atchison R. & S.F. Ry. Co., 60 F.3d 1416 (9th Cir. 1995) 19 Hammond v. Terminal R.R. Ass'n, 848 F.2d 95 (7th Cir. 1988) 14 Page Hawaiian Airlines v. Norris, 512 U.S. 246 (1994) 9, 12, 13, 14, 18 Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988) 13, 14 McAlester v. United Air Lines, 851 F.2d 1249 (10th Cir. 1988) 19 Monroe v. Missouri Pacific Railroad Co., 115 F.3d 514 (7th Cir. 1997) 14 Norman v. Missouri Pac. R.R., 414 F.2d 73 (8th Cir. 1969) 19 Nowak v. St. Rita High School, 142 F.3d 999 (7th Cir. 1998) 6 NRAB Third Div. Award No. 19790 (1973) 18 O'Brien v. Consolidated Rail Corp., 972 F.2d 1 (1st Cir. 1992), cert. denied, 506 U.S. 1054 (1993) 15 Saridakis v. United Airlines, 166 F.3d 1272 (9th Cir. 1999) 9, 10, 18 United Airlines, Inc., 48 LA 727 (BNA) (1967) 18 STATUTES Labor Management Relations Act of 1947, 29 U.S.C. § 185(a) 13 Employee Retirement Income Security Act, 29 U.S.C. § 1144(d) 16 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3) 8 Page Americans With Disabilities Act of 1990, 42 U.S.C. § 12111(9)(B) 8, 13 42 U.S.C. § 12112(b)(5)(A) 1, 8, 12 42 U.S.C. § 12117 1, 8 42 U.S.C. § 12206 1 Railway Labor Act, 45 U.S.C. § 12101 1 45 U.S.C. § 153, First (i) 9 RULES AND REGULATIONS 29 C.F.R. Pt. 1630, App. § 1630.2(o) 17 LEGISLATIVE HISTORY H.R. Rep. No. 485(II), 101st Cong., 2d Sess. (1990) 15, 16 S. Rep. No. 16, 101st Cong., 1st Sess. (1989) 15, 16 ADMINISTRATIVE GUIDANCE EEOC: Guidance on Reasonable Accommodation Under the ADA, 8 F.E.P. Manual (BNA) 405:7601 (March 1, 1999) 17STATEMENT OF INTEREST The Equal Employment Opportunity Commission ("EEOC") is charged with the interpretation and enforcement of Title I of the Americans With Disabilities Act of 1990 ("ADA"), which prohibits employment discrimination based on disability. See 42 U.S.C. §§ 12117 and 12206. Robert Brown sued his employer, Illinois Central Railroad Company ("IC") in federal court, claiming that IC refused to provide him with the reasonable accommodation of a modified work schedule, in violation of the ADA, 42 U.S.C. § 12112(b)(5)(A). R1.<1> The district court held Brown's claim was precluded by the Railway Labor Act ("RLA"), 45 U.S.C. § 12101 et seq., and dismissed his suit for lack of subject matter jurisdiction. R61. Because the district court's decision, if affirmed, would significantly curtail the federal statutory rights of workers in the railroad and airline industries <2> to a workplace free of discrimination because of disability, including the right to reasonable accommodation, the EEOC offers its views to the Court. STATEMENT OF FACTS IC is a rail "carrier," as defined by the RLA, R61 at 2, and an "employer" covered by the ADA. R59, ExA, p1, ¶1. The United Transportation Union ("UTU") is the exclusive bargaining representative for IC's train service employees. Id., ¶6. IC and UTU have entered into a collective bargaining agreement ("CBA") concerning the terms and conditions of train service employment. Id., ¶7. Robert Brown began working for IC in October 1978, and transferred to the trainman<3> craft in May 1979. Id., ¶¶2-3. Brown was qualified as a conductor in May 1980, and worked in that position for about eight years. R27, ExA, p24. In 1988, Brown was hospitalized for depression, paranoia, and suicidal feelings. Id., p74. Brown's physician, Dr. Vincent Indovina, diagnosed his condition as schizoaffective disorder, a mental illness that can cause delusions, hallucinations, disorganized thinking, paranoia, social withdrawal, dysfunctional and obsessive behavior, and depressive episodes.<4> R61, pp4-5. In 1989, Dr. Indovina informed IC that Brown's psychiatric condition made him unable to withstand the stress required to perform supervisory tasks, and restricted him to "helper only" trainman jobs, such as brakeman or switchman, rather than conductor or foreman. Id., p5; R25, pp12-13, ¶¶5-6. Due to this permanent restriction, Brown was "medically disqualified" by IC for a period of time. R59, ExA, p3, ¶17. IC eventually accommodated Brown's medical restriction, however, and has allowed him to work in only non-supervisory trainman jobs since at least April 1993. Id. IC employs trainmen in regular and "guaranteed extra board" ("GEB") positions. Id., p2, ¶10. Under the CBA, vacancies for all trainman positions are filled according to seniority. Id. Trainmen holding a regular (non-GEB) position "generally are assigned a specific work schedule and location" and work six days per week. Id., p2, ¶11. GEB trainmen comprise a pool of extra employees who are assigned to fill daily vacancies that occur when a regular trainman is absent due to illness, vacation, or personal business. Id., ¶12. GEB trainmen also fill extra jobs on unscheduled or irregularly scheduled trains. Id. Consequently, GEB trainmen work a variety of jobs and shifts, as vacancies occur. See R27, ExA, pp12-14. GEB trainmen are assigned to jobs by crew callers, who call employees listed on the extra board on a "first-in, first-out basis, i.e., the employee who has been available to work and has the longest period of not being assigned to a crew is first on the call board to be assigned to work." R59, ExA, p2, ¶¶13-14. After a GEB employee completes his assigned tour of duty, "he 'marks back up' on the board and goes to the bottom of the list," which "rotates in this fashion as individuals are assigned to work." Id., ¶14. As long as a trainman remains on the GEB list, he must work when called by the crew caller, "assuming that he is properly rested and not otherwise excused." Id. A GEB trainman is paid for each day he is listed on the extra board as available to work, whether or not he is actually called and assigned to work that day. R59, ExA, p2-3, ¶15. A trainman who takes a day off for any reason "lays off" (or "marks off") and is not paid for that day. Id.; R61, pp3-4. The CBA provides that "employees are entitled to a reasonable amount of layoffs," and "does not define what is a reasonable number of layoffs." R59, ExA, p1, ¶8. CBA Article 3, entitled "Laying Off," states that "an employee is entitled to be permitted to be absent from work . . . in the event of his own illness or a serious illness or death in his immediate family," and "for good reason, such as urgent personal business or working long hours, an employee should be permitted to be absent from work within reasonable limits." R60, Ex1, p96, Art. 3. The CBA further provides that "if an employee desires to be off even without urgent reason and his absence is not likely to entail additional expense, he should be permitted to be off. This, however, does not apply to an employee who absents himself excessively . . . ." Id. "Finally," the CBA states, "it is recognized that the company is warranted in controlling the privilege of laying off although it should do so reasonably." Id. Prior to May 1995, IC maintained both yard and road service positions for trainmen. R61, p3. Yard jobs had both geographical limits and scheduling restrictions, "which limited [IC's] flexibility in scheduling employees." Id. Employees in the GEB for yard jobs had two assigned days off per week, and consequently were guaranteed only five days pay. R25, pp5-6, ¶13. Employees in the GEB for road service jobs had no assigned days off. R61, pp3-4. In May 1995, IC abolished yard jobs and reclassified all GEB positions as road service jobs. Id.; R59, ExA, p3, ¶18. While the reclassification eliminated assigned rest days for all GEB employees, R61, pp3-4, the physical job duties of trainmen remained the same. R59, ExA, p3, ¶18. Neither the CBA, nor the job description prepared by IC's Medical Director for the trainman's position, states that GEB trainmen are required to be available to work seven days per week. R59, ExA, p1, ¶8 and p5, ¶38. Due to his mental condition, "Brown was unable to work seven days a week as a GEB trainman." R61, p5. Prior to the May 1995 reclassification of yard jobs, Brown held a GEB yard job which required him to work various shifts five days a week, with assigned days off on Monday and Tuesday. R27, ExA, pp12-13. Beginning in June 1995, after assigned rest days were eliminated for all GEB positions, Brown "generally would lay off sick on a routine basis two days a week." R59, ExA, p3, ¶19. IC did not object to this practice, and "made no complaints regarding [Brown's] attendance until almost one year had passed." Id., ¶20. In May 1996, John Kay, who had recently become superintendent of IC's Northern Region, reviewed the work records of all trainmen within his district, including Brown. R61, p6. Kay then met with Brown and several other GEB employees to discuss attendance. R59, ExA, p3, ¶22. At a meeting on June 11, 1996, Brown gave Kay a note from Dr. Indovina restricting Brown "to working a maximum of five days a week," due to his schizoaffective disorder. R61, p6. Two days later, having "determined that it could not make reasonable accommodations for Brown," IC medically disqualified Brown from employment. Id. Brown remains on IC's seniority list and is eligible to return to work "if his restrictions are lifted or GEB requirements change." R59, ExA, p4, ¶28. District Court Proceedings In July 1997, Brown filed suit, claiming that IC violated the ADA by placing him on its medically disqualified list because he was qualified to work as a GEB trainman with the reasonable accommodation of being allowed to lay off two days per week. R1. IC moved for summary judgment, arguing that Brown's schizoaffective disorder is not a "disability"; he is not a "qualified individual"; and his proposed accommodation is not reasonable because it would require IC to create a new position which would be occupied by a trainman with more seniority than Brown.<5> See R36, p10. The district court denied summary judgment on January 20, 2000. R36. The court concluded that Brown had demonstrated genuine issues of material fact as to whether he has a disability within ADA coverage, id., pp12-13, and whether he is a "qualified individual" who can perform all the essential functions of his trainman's job with or without reasonable accommodation. Id., pp13-16. While IC maintained that "seven day per week attendance is an essential function of [IC's] trainman position," the court found this to be a disputed issue based on evidence that IC's "job description for the trainman position did not include any reference to a seven day per week attendance policy"; the CBA "contains no specific limitation on the number of days a trainman may lay off, requiring only that the number of days be 'reasonable'"; and "some evidence that [IC's] enforcement of the seven day a week requirement has been less than uncompromising."<6> Id., p15. The court also rejected IC's argument that Brown's proposed accommodation of laying off two days per week is "unreasonable" as a matter of law because it would require IC to create a new position or to violate CBA seniority provisions. Id., pp17-19. Because the evidence, "particularly the [CBA] . . . creates a genuine issue of material fact as to whether the GEB trainman position requires seven day a week attendance," the court found "a genuine issue of material fact . . . as to whether accommodating Brown's request would in fact create a 'new' position, or would simply modify the requirements of the existing GEB trainman position." Id., p18. Similarly, "for the same reason," the court found "a genuine issue of material fact exists as to whether [IC's] allowance of Brown to lay off two days a week would bestow upon Brown a more favored job and therefore permit him to bypass more senior [IC] employees."<7> Id., pp18-19. On February 11, 2000, IC moved to dismiss Brown's complaint for lack of subject matter jurisdiction on the ground that Brown's ADA claim was subject to mandatory arbitration under the RLA, and therefore within the exclusive jurisdiction of an arbitral Railroad Adjustment Board. R54. The district court agreed and dismissed Brown's complaint on April 17, 2000. R61. The court perceived that it was "faced with a choice between the ADA and the RLA," which divides labor disputes between a railroad and its employees into two classes: "major disputes," which "involve the creation of contractual rights" and are subject to federal court jurisdiction, and "minor disputes," which "seek to enforce these contractual rights" and are within the "exclusive jurisdiction" of an arbitral Adjustment Board. Id., pp10-11. Applying the RLA's "major/minor dispute" classifications to Brown's suit, the court determined that "[a]nalysis of Brown's ADA claims necessarily requires interpretation of the CBA in order to determine the parameters of the reasonable accommodations [IC] is to provide." Id., pp13-14. Specifically, the court stated, interpretation of the CBA would be necessary "to determine whether being available seven days a week is an essential function of Brown's position," and whether his proposed "reduction" to a five-day work week would "create a new position," subject to assignment pursuant to the CBA's "seniority provisions." Id., pp14-15. Having concluded that "Brown's particular ADA claims involve interpretation of the CBA" and are therefore "minor disputes that may only be adjudicated under the RLA," the court held that it "lacks subject matter jurisdiction over Brown's particular ADA claims" and dismissed his suit. Id., p15. ARGUMENT THE RAILWAY LABOR ACT, IN REQUIRING EXCLUSIVE ARBITRATION OF "MINOR DISPUTES" ARISING UNDER A COLLECTIVE BARGAINING AGREEMENT, DOES NOT DEPRIVE A RAILROAD EMPLOYEE OF HIS FEDERAL STATUTORY RIGHT TO SEEK JUDICIAL RESOLUTION OF HIS CLAIM THAT HE WAS DENIED A REASONABLE ACCOMMODATION IN VIOLATION OF THE ADA. The ADA provides a statutory right to a workplace free of unlawful discrimination because of disability, including the right to reasonable accommodation, see 42 U.S.C. § 12112(b)(5), and a further right to judicial resolution of a claim of disability-based employment discrimination. See 42 U.S.C. § 12117(a) (incorporating "powers, remedies, and procedures" of Title VII to enforce ADA); 42 U.S.C. § 2000e-5(f)(3) (investing federal courts with jurisdiction over Title VII enforcement actions). The statute defines prohibited discrimination to include "not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified . . . employee" with a disability, unless "the accommodation would impose an undue hardship on the operation of the [employer's] business." 42 U.S.C. § 12112(b)(5)(A). "Reasonable accommodation" is defined to include "part-time or modified work schedules." 42 U.S.C. § 12111(9)(B). "The RLA, by contrast, provides a comprehensive framework for the resolution of labor disputes in the railroad industry." Atchison T. & S.F. Ry. v. Buell, 480 U.S. 557, 562 (1987). The RLA classifies such disputes as "major" and "minor": "[M]ajor disputes seek to create contractual rights, minor disputes to enforce them." Consolidated Rail Corp. v. Railway Labor Execs., 491 U.S. 299, 302 (1989). "Minor disputes" are subject to "compulsory, binding arbitration under the RLA before the National Railroad Adjustment Board." Id. The "minor dispute" provisions of the RLA "set forth conference and compulsory arbitration procedures for a dispute arising or growing 'out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.'" Id. at 303 (quoting 45 U.S.C. § 153, First (i)). Thus, the RLA requires binding arbitration of a dispute involving the contractual rights and obligations of railways and their employees, and it is the terms of the CBA that control the resolution of the dispute. "The distinguishing feature of [a minor dispute] is that it may be conclusively resolved by interpreting the existing agreement." Id. at 305; see also Hawaiian Airlines v. Norris, 512 U.S. 246, 258 (1994) ("'[M]inor disputes' subject to RLA arbitration are those that involve duties and rights created or defined by the [CBA]."). The district court held that "the RLA would preempt" any ADA claims that could be characterized as "'minor disputes' within the meaning of the RLA." R61, p12. In so ruling, the court misapplied the doctrine of claim preemption, which governs whether a federal statute supplants a claim arising under state law, to a case that instead presents a question of claim preclusion, and requires the court to decide "whether one federal law takes precedence over another." Coker v. Trans World Airlines, 165 F.3d 579, 583 (7th Cir. 1999) ("Preemption is not the applicable doctrine under these circumstances, since the question whether one federal law takes precedence over another does not implicate the Supremacy Clause."); see also Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th Cir. 1999) ("The preemption doctrine per se does not govern questions relating to the compatibility of two or more federal laws."). "The choice between two federal statutes requires an analysis of both, to see if they are indeed incompatible, or if they can be harmonized, and if they are incompatible, to decide which one Congress meant to take precedence." Coker, 165 F.3d at 583. Brown's appeal thus requires this Court to "determine whether Congress intended the RLA's mandatory arbitration scheme to preclude [him] from bringing an independent action under the ADA." Saridakis, 166 F.3d at 1276. Longstanding unanimous Supreme Court precedent, the legislative history of the ADA, and pertinent decisions of other circuits all support the conclusion that the arbitration provisions of the RLA do not supplant the ADA's requirement that railroads and airlines reasonably accommodate their disabled employees, or the statutory right of individual employees like Brown to obtain judicial resolution of ADA claims. The Supreme Court has recognized "[t]he distinctly separate nature" of contractual rights arising under a CBA and statutory rights provided by federal employment discrimination laws. Alexander v. Gardner-Denver, 415 U.S. 36, 50 (1974). "Both rights," the unanimous Court held, "have legally independent origins and are equally available to the aggrieved employee." Id. at 52. In holding that arbitration of contract-based claims does not preclude judicial resolution of statutory claims arising under Title VII, the Court emphasized the distinctive nature of the rights conferred by federal civil rights laws. In contrast to the "majoritarian processes" that result in collectively bargained rights, Title VII concerns . . . an individual's right to equal employment opportunities. Title VII's strictures are absolute and represent a congressional command that each employee be free from discriminatory practices. Of necessity, the rights conferred can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII. Id. at 51. The Court in Alexander also stressed the role of the arbitrator in resolving claims pursuant to a CBA: [T]he arbitrator's task is to effectuate the intent of the parties. . . . The arbitrator, however, has no general authority to invoke public laws that conflict with the bargain between the parties . . . . [T]he arbitrator has authority to resolve only questions of contractual rights, and this authority remains regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII. Id. at 53-54. The Supreme Court, in Atchison T. & S.F. Ry. v. Buell, unanimously reaffirmed this critical distinction between statutory and contractual rights in the context of the RLA's requirement that "minor disputes" arising under a CBA be arbitrated by a Railroad Adjustment Board. The Buell Court focused on the congressional purpose of the Federal Employer Liability Act ("FELA"), the source of the federal statutory claim at issue in that case. The FELA, the Court stated, is a "broad remedial statute" enacted to provide a federal remedy for railroad workers who suffer job-related injuries due to the negligence of their employer or co-workers. 480 U.S. at 561-62. In rejecting the railroad's argument that the RLA provides "the exclusive forum for any dispute arising out of workplace conditions," id. at 563, the Buell Court based its decision on the principle, first announced in Alexander, that "notwithstanding the strong policies encouraging arbitration, 'different considerations apply where the employee's claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.'" Id. at 565 (quoting Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 737 (1981)). "The fact that an injury otherwise compensable under the FELA was caused by conduct that may have been subject to arbitration under the RLA," the Court concluded, "does not deprive an employee of his opportunity to bring an FELA action for damages."<8> Id. at 564. The principle unanimously announced in Alexander and unanimously affirmed in Buell dictates that the RLA's requirement of binding arbitration of contractual disputes does not preclude a disabled employee from seeking judicial enforcement of his independent statutory right to a workplace free from discrimination, including the right to reasonable accommodation. The district court, in dismissing Brown's ADA suit for lack of subject matter jurisdiction, ignored the pivotal distinction between claims founded on contractual rights and obligations derived from the CBA, and claims arising under the ADA, a federal "statute designed to provide minimum substantive guarantees to individual workers." Buell, 480 U.S. at 565. "By bringing a claim under the ADA . . . [Brown] seeks to enforce a federal statutory right, not a contractual right embodied by the [CBA]." See Benson v. Northwest Airlines, 64 F.3d 1108, 1115 (8th Cir. 1995). Brown's claim that IC discriminated against him by denying him the reasonable accommodation of a modified five-day-per-week work schedule derives from the ADA, not the CBA between IC and the UTU. See 42 U.S.C. § 12112(b)(5)(A) (defining prohibited discrimination to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability," absent a showing of undue hardship), § 12111(9)(B) ("reasonable accommodation" defined to include "part-time or modified work schedules"). As the district court acknowledged, even IC "does not contend that the CBA provides the only source for Brown's claims." R61, p13. The district court nonetheless concluded that "Brown's ADA claims are 'minor disputes'" by crediting IC's argument that "Brown's ADA claims require and may be resolved by an interpretation of the CBA." Id. In so ruling, the court improperly applied the standard governing whether a state law claim is preempted by the RLA, or by § 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185(a), to determine whether a claim arising under a federal statute (the ADA) is precluded by the arbitration requirements of the RLA. The "principle of § 301 preemption," extended by the Supreme Court in Hawaiian Airlines, 512 U.S. at 262-63, to govern RLA preemption of state claims, holds that "if the resolution of a state-law claim depends upon the meaning of a [CBA], the application of state law (which might lead to inconsistent results since there could be as many state-law principles as there are States) is preempted and federal labor-law principles - necessarily uniform throughout the Nation - must be employed to resolve the dispute." Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988) (§ 301 does not preempt state tort claim for discharge in retaliation for filing workers' compensation claim); see also Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) (state tort claim for bad faith handling of insurance claim for benefits under CBA's disability plan was preempted by § 301 because right asserted was "rooted in contract" and, "[u]nless federal law governs that claim, the meaning of the health and disability benefit provisions of the labor agreement would be subject to varying interpretations, and the congressional goal of a unified federal body of labor-contract law would be subverted"). Under this standard, "an application of state law is preempted by § 301 . . . only if such application requires the interpretation of a [CBA]."<9> Lingle, 486 U.S. at 413. By contrast, when a claim arises under a federal statute, federal law necessarily will govern resolution of the claim, eliminating the danger of "varying interpretations" of any CBA provisions that may be implicated in resolving the claim and preserving "the congressional goal of a unified federal body of labor-contract law." See Lueck, 471 U.S. at 220. Consequently, the determination whether a claim arising under a federal statute is precluded by the RLA or LMRA does not turn on whether the federal claim requires interpretation of a CBA, but rather "requires an analysis of both [statutes], to see if they are indeed incompatible or if they can be harmonized, and if they are incompatible, to decide which one Congress meant to take precedence." Coker,165 F.3d at 583-84. See Buell, 480 U.S. at 565-66 (distinguishing "state wrongful discharge claim based squarely on an alleged breach of the [CBA]," for which Congress intended RLA's "dispute resolution mechanism to be mandatory," from claims arising under FELA, which were not precluded by RLA); Bates v. Long Island R.R. Co., 997 F.2d 1028, 1034-35 (2d Cir.) (ruling RLA does not preclude federal discrimination claims under Rehabilitation Act which "may implicate" CBA provisions, and distinguishing holding in O'Brien v. Consolidated Rail Corp., 972 F.2d 1, 5 (1st Cir. 1992), cert. denied, 506 U.S. 1054 (1993), that "the RLA preempted a state law handicap discrimination claim" because "it focused on avoiding state law interference with a federal statutory scheme" rather than the interaction of "two federal statutory schemes"), cert. denied, 510 U.S. 992 (1993). The legislative history of the ADA clearly demonstrates Congress's intent that the contractual terms of a CBA could be considered in resolving certain issues arising in the context of an ADA claim, but that the CBA would not "conclusively resolve" or supplant statutory rights or remedies. For example, Congress recognized that while the terms of a CBA "could be relevant . . . in determining whether a given accommodation is reasonable . . . the agreement would not be determinative on the issue." H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 63 (1990) ("House Labor Report"); see also S. Rep. No. 16, 101st Cong., 1st Sess. 32 (1989) ("Senate Report"). Similarly, "if the [CBA] includes job duties, it may be taken into account as a factor in determining whether a given task is an essential function of the job." Id. Thus, on the very two issues the district court identified as requiring CBA interpretation to resolve Brown's ADA claim - whether a particular accommodation is reasonable, and whether a certain job requirement is an essential function, see R61, pp 14-15 -- Congress expressly contemplated that the terms of a CBA could be considered by a court in resolving the ADA claim. In holding that the RLA's requirement of binding arbitration deprives a court of jurisdiction over any ADA claim that may require consideration of CBA provisions, the district court accorded precedence to the RLA when Congress clearly "meant [the ADA] to take precedence." See Coker, 165 F.3d at 583. If the district court's ruling were upheld, an employer could avoid many of its statutory obligations under the ADA merely by invoking conflicting terms in a CBA. Such an outcome would frustrate Congress's intent that an employer's "obligation to comply with this [statute] is not affected by any inconsistent term of any [CBA] to which it is a party" because "an employer cannot use a [CBA] to accomplish what it otherwise would be prohibited from doing under this Act." House Labor Report at 63; Senate Report at 32.<10> To be sure, as the district court recognized in its initial decision denying summary judgment, provisions of the CBA describing the functions of the trainman position and establishing the contractual right of employees to reasonable absences may inform the resolution of Brown's ADA claim. See R36, pp13-16. The terms of the CBA may be relevant to determine the essential functions of the GEB trainman position and whether being available to work seven days per week is essential to job performance. The resolution of these factual issues will, in turn, determine whether Brown's proposal to lay off two days per week is a reasonable accommodation required by the ADA, or falls outside the scope of IC's statutory duty to make reasonable accommodation, because it would require IC to eliminate an essential job function or create a new position.<11> Yet the mere fact that certain provisions of the CBA between IC and the UTU may be implicated in resolving Brown's federal statutory claim does not convert his ADA suit into a contractual "minor dispute" that can be "conclusively resolved by interpreting the existing [CBA]," Consolidated Rail Corp., 491 U.S. at 305, 307, and therefore subject to exclusive, binding arbitration before a Railroad Adjustment Board. See Bates, 997 F.2d at 1034 ("While it is true that appellants' discriminatory discharge claims [under the Rehabilitation Act] may implicate those portions of their [CBAs] that provide for physical disqualification from employment, it is not true that their exclusive remedy for their allegedly wrongful discharges is arbitration" under the RLA.). Far from requiring Brown to arbitrate his ADA claim, moreover, the RLA does not even authorize an arbitral Adjustment Board to determine the parties' respective rights and obligations under the ADA. Under the RLA, the Adjustment Board resolves "minor disputes" between carriers and their employees with reference solely to the existing CBA between the parties, and is thus authorized to determine only contractual rights and obligations. Hawaiian Airlines, 512 U.S. at 254-55 (citing NRAB Third Div. Award No. 19790 (1973) ("this Board lacks jurisdiction to enforce rights created by State or Federal Statutes and is limited to questions arising out of interpretations and application of Railway Labor Agreement"); United Airlines, Inc., 48 LA 727, 733 (BNA) (1967) ("The jurisdiction of this System Board does not extend to interpreting and applying the Civil Rights Act")). As the Court in Alexander recognized, statutory rights conferred on each employee by federal civil rights laws necessarily exist independent of any terms negotiated through the collective-bargaining process, 415 U.S. at 51, and an arbitral forum authorized to give effect only to the contracting parties' intent, as is an Adjustment Board under the RLA, is not empowered to enforce "the substantive rights secured" by the ADA. Id. at 53-54. Like the labor arbitrators charged with resolution of the contractual claims in Alexander, 415 U.S. at 53-54, the authority of a Railroad Adjustment Board is confined to effectuating the contractual terms of a CBA. See Hawaiian Airlines, 512 U.S. at 254 ("Significantly, the adjustment boards charged with administration of the minor-dispute provisions have understood these provisions as pertaining only to disputes invoking contract-based rights."). Arbitration of "minor disputes" under the RLA is thus incapable of vindicating Brown's federal statutory rights guaranteed by the ADA. Finally, other federal appellate courts have uniformly held that the RLA does not preclude claims arising under federal civil rights laws, including the ADA and its statutory precursor, the Rehabilitation Act of 1973. See, e.g., Saridakis, 166 F.3d at 1277 (because "rights under the ADA . . . are derived from sources independent of the CBA," RLA does not preclude claim of disability discrimination); Benson, 64 F.3d at 1115 ("The ADA 'provides a more extensive and broader ground for relief, specifically oriented towards the elimination of discriminatory employment practices' and, thus, is not preempted by the [RLA]."); Bates, 997 F.2d at 1034-35 (RLA's arbitration procedures for "minor disputes" do not preclude claims of disability discrimination under Rehabilitation Act); cf. Felt v. Atchison T. & S.F. Ry. Co., 60 F.3d 1416, 1419-20 (9th Cir. 1995) (RLA does not preclude Title VII claim for religious accommodation, notwithstanding railroad's assertion that interpretation of CBA provisions would be required to resolve plaintiff's claim because plaintiff sought "only contractually guaranteed benefits and remedies" and railroad asserted a "contractual right to terminate [his] protected status when he failed to bid on [an] available slot"); McAlester v. United Air Lines, 851 F.2d 1249, 1254-56 (10th Cir. 1988) (RLA does not preclude claim of race discrimination brought against employer under 42 U.S.C. § 1981); Norman v. Missouri Pac. R.R., 414 F.2d 73, 83 (8th Cir. 1969) (RLA does not preclude Title VII race discrimination claims).<12> CONCLUSION Because the district court had subject matter jurisdiction over Brown's federal statutory claim for reasonable accommodation under the ADA, the EEOC urges this Court to reverse the dismissal of Brown's suit and remand his claims for trial on the merits. Respectfully submitted, C. GREGORY STEWART _____________________________ General Counsel DORI K. BERNSTEIN Attorney PHILIP C. SKLOVER Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CAROLYN L. WHEELER Assistant General CounselRULE 32(a)(7)(C) CERTIFICATE OF COMPLIANCE I certify that this brief contains 6,398 words. The brief was prepared in the WordPerfect 8 word-processing system, using 12-point proportionally spaced type. ______________________________ Dori K. Bernstein Attorney October 10, 2000 CERTIFICATE OF SERVICE I, Dori K. Bernstein, hereby certify that I served two copies of the foregoing Brief, and one copy of the foregoing brief on digital media, this 10th day of October 2000, by first-class mail, postage pre-paid, to the following counsel of record: Mary Louise Kandyba Attorney at Law 221 North LaSalle Street Suite 1007 Chicago, Illinois 60601 Patrick W. Walsh Patrick W. Walsh, P.C. 415 North LaSalle Street Suite 201 Chicago, Illinois 60610 ______________________________ DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202) 663-4734 1 Record references to numbered entries on the district court docket are designated: "R[Record]__"; "Ex[Exhibit]__"; "p[page]__"; and "¶[paragraph]__". 2 The RLA governs labor relations in both the railroad and airline industries. See Consolidated Rail Corp. v. Railway Labor Execs., 491 U.S. 299, 304 n.4 (1989). 3 The trainman craft at IC includes trainmen/brakemen/switchmen ("trainmen") and conductors. R59, ExA, pp1-2, ¶9. A trainman's "primary job duties" require him to throw track switches, couple and uncouple cars, couple and uncouple hoses, and engage and disengage brakes. Id. Conductors perform trainman duties and supervisory functions. Id. 4 Brown has since been hospitalized repeatedly for depression and suicidal feelings associated with his mental condition. R27, ExA, pp74-75, pp89-93. 5 Out of 226 trainmen on IC's seniority list, Brown ranked 216; only ten trainmen had less seniority than Brown. R61, p4. 6 The court rejected IC's reliance on case law holding that a teacher whose disability prevented his regular attendance at school was not a qualified individual under the ADA, because "it is undisputed that Brown could, if allowed, work five days a week as a trainman" and "a genuine issue of material fact exists as to whether seven day per week attendance is an essential function of the trainman position." R36, pp15-16 (distinguishing Nowak v. St. Rita High School, 142 F.3d 999 (7th Cir. 1998)). 7 IC moved the court to reconsider the denial of summary judgment, based on Brown's claims of total disability in an application for benefits filed with the Railroad Retirement Board in June 1998. See R41. The district court denied reconsideration on July 14, 2000. R44. Applying the reasoning of the Supreme Court in Cleveland v. Policy Management Systems Corp., 119 S. Ct. 1597 (1999), the district court was unconvinced that "Brown's ADA claim and his Railroad Board claim are in conflict," since the "status of Brown's schizoaffective disorder in June 1998 is of no relevance to whether Brown was a 'qualified person with a disability' in June 1996, when [IC] placed him on medically disqualified status." R44, p11. The court therefore affirmed its earlier ruling that "genuine issues of material fact exist precluding summary judgment for [IC]." Id. 8 The Supreme Court in Hawaiian Airlines v. Norris, 512 U.S. at 260, followed the reasoning of Buell to hold that "a state-law cause of action is not pre-empted by the RLA if it involves rights and obligations that exist independent of the [CBA]." The Court derived the proper preemption standard from its holdings in prior cases, including Buell, that "the RLA's mechanism for resolving minor disputes does not pre-empt causes of action to enforce rights that are independent of the CBA." Id. at 256. Although the Court acknowledged that "Buell, of course, involved possible RLA preclusion of a cause of action arising out of a federal statute, while this case involved RLA preemption of a cause of action arising out of state law and existing entirely independent of the [CBA]," the Court decided "[t]hat distinction does not rob Buell of its force in this context." Id. at 259 n.6. The Court in Hawaiian Airlines thus reaffirmed that the critical question in deciding whether the RLA requires arbitration of a particular claim is whether the source of the claim is a substantive legal right independent of the CBA. 9 In Monroe v. Missouri Pacific Railroad Co., 115 F.3d 514, 519 (7th Cir. 1997), this Court determined that "the RLA preemption standard," as announced in Hawaiian Airlines and Lingle, is comprised of two elements: first, "whether a CBA provided the only source for a plaintiff's . . . claim," and second, "whether the adjudication of a plaintiff's claim requires interpretation of a CBA." The Court in Monroe held that a plaintiff's wrongful discharge claims "require an interpretation of the CBA and thus mandate our finding of preemption" by the RLA. Id. While the plaintiff in Monroe styled his claim as arising under the FELA or Illinois public policy, this Court refused to "allow Monroe to 'artfully plead' himself around the preemptive effect of the RLA by framing his CBA claims as wrongful discharge causes of action under the FELA and Illinois public policy." Id. at 519-20. The Monroe Court perceived that, notwithstanding the FELA label attached to the plaintiff's claims, the "true source"of his complaint did not derive from that federal statute, but rather turned on an interpretation of the CBA and thus was preempted by the RLA. Id., citing Hammond v. Terminal R.R. Ass'n, 848 F.2d 95, 97 (7th Cir. 1988) ("A claim does not arise under the FELA merely because the plaintiff names that statute in his complaint and omits (accidentally or by design) the claim's true source."). The Court in Monroe thus viewed the issue as one of state law preemption, rather than federal law preclusion, as demonstrated by the consistent use throughout the opinion of the term "preemption" rather than "preclusion" to describe the effect of the RLA on plaintiffs' claims. While this Court in Coker, 165 F.3d at 584, and the district court below, R61, p 9, misread Monroe as holding that the RLA precluded a claim under the FELA, such a ruling could not be sustained under the Supreme Court's holding in Buell that the RLA does not preclude a claim arising under the FELA because, "notwithstanding the strong policies encouraging arbitration, 'different considerations apply where the employee's claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.'" 557 U.S. at 565. 10 The clear expression in the ADA's legislative record that Congress intended courts to consider relevant CBA provisions in resolving an ADA claim, distinguishes the ADA from ERISA, which provides that "[n]othing in this subchapter shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States . . . or any rule or regulation issued under any such law." 29 U.S.C. § 1144(d). This Court in Coker agreed with other circuits that had "construed this language to preserve the exclusive jurisdiction of the Adjustment Board under the RLA over the arbitration of minor disputes." Coker, 165 F.3d at 584. 11 See 29 C.F.R. Pt. 1630, App. § 1630.2(o) (ADA duty to make reasonable accommodation does not require employer to reallocate or eliminate essential job functions); EEOC: Guidance on Reasonable Accommodation Under the ADA, 8 F.E.P. Manual (BNA) 405:7601, 7622 (March 1, 1999) (employer does not have to create a new position to accommodate a disabled worker who can no longer perform his job). 12 While this Court has not expressly addressed the question of RLA preclusion of a claim arising under the ADA, the Court in Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir. 1996), decided the merits of a railroad employee's ADA claim that he was denied reasonable accommodation, notwithstanding that CBA provisions were necessarily implicated in resolving his statutory claim and RLA preclusion was discussed in the district court decision under review. See Eckles, 890 F. Supp. 1391, 1414-15 (S.D. Ind. 1995). Arguably, by exercising federal subject matter jurisdiction over Eckles' claim that ConRail denied him reasonable accommodation in violation of the ADA, this Court implicitly approved the district court's distinction between Eckles' assertion that ConRail and his Union could have exempted him from "bumping" by more senior employees under a CBA provision, which the district court held was a purely contractual claim and thus preempted by the RLA, and his federal statutory claim that he was entitled to a "bumping exemption" as a reasonable accommodation under the ADA, which both the district court and this Court resolved on the merits. See 94 F.3d at 1050-51.