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August 28, 1989


The opinion of the court was delivered by: MCGLYNN, JR.


 In these consolidated actions brought pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. [section] 51 et seq., four former railroad employees allege that they were injured as a result of defendant Conrail's failure to provide them with a safe workplace. Conrail maintains, however, that the FELA does not impose liability on employers for purely emotional or stress-related "injuries." Before the court are defendant's consolidated motions for summary judgment.


 Summary Judgment must be granted "if the pleadings, deposition, answers to interrogatories, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). For the purpose of these consolidated motions, plaintiffs' allegations will be accepted as true.

 Each of the four plaintiffs worked for a period of time as a Conrail train dispatcher, and each now allegedly suffers from emotional or stress-related "injuries." Plaintiffs Kraus, Shoemaker and Barber suffer from physical as well as emotional disorders purportedly caused by on-the-job stress. Plaintiff Owens' alleged disability is purely "emotional" in nature.

 (a) William Kraus

 Plaintiff Kraus began working as a Conrail train dispatcher in March 1987 after seventeen years as a block operator. Plaintiff contends that since 1978 Conrail began to consolidate job responsibilities and territories. Various support groups were eventually eliminated in a workforce reduction characterized by Kraus as "drastic."

 Plaintiff describes his job as generally stressful, chaotic, and unsafe due to the heavy workload and pressure created by the consolidation of positions and reduction in force. While working for Conrail, Kraus allegedly suffered from dizzy spells, blackouts and exhaustion. Although he complained to supervisors about the workload and working conditions, he never filed a written grievance with his union.

 According to Kraus, a train dispatcher is concerned with the safe movement of trains. Among other things, he monitors a radio system, prepares daily reports on accidents and delays, informs railroad personnel of maintenance assignments, and keeps track of crew changes to ensure proper staffing. Dispatchers also work considerably with computers that monitor the movement of trains.

 Kraus maintains that March 12, 1987 was a typically stressful and chaotic day. He received and made a large number of telephone calls and had a backlog of data to feed into the computer. Local freight trains -- causing congestion on the rails -- awaited his permission to move. A bridge had "failed," and his supervisors complained about his being behind schedule. As a result of these demands, plaintiff mistakenly permitted a train to proceed through a stop signal, threatening the life of an electrician who was working on the tracks. After plaintiff tried unsuccessfully to stop the train, he became anxious and began to sweat. Plaintiff described March 12 as "hectic . . . as most days were hectic. They brought a lot of tension to the job in anxiety and stress, and specifically there was no incidents." Pl. Dep. Tr. 23.

 Approximately one week earlier, two dispatcher desks had been consolidated -- over union objection -- increasing the territory for which plaintiff was responsible from 225 miles to 450 miles. Plaintiff did not file any grievance based on the consolidation. He did, however, raise the issue with the duty train operations officer and was told that studies would be done before implementation of the consolidation.

 On March 27, 1987, plaintiff experienced chest pains, nausea, and sweating. He was admitted to a hospital where he remained for five days, two of which were spent in intensive care. Doctors determined that Mr. Kraus had not had a heart attack; however, his very real chest pains were caused by job-related stress.

 Plaintiff stated at his deposition that he often thought and dreamed about collisions, derailments and other accidents.

 (b) Ronald Shoemaker

 Plaintiff Ronald Shoemaker began working for the Reading Railroad as a tower/block operator on September 7, 1961 and remained in that position until February 8, 1969, when he was promoted to train dispatcher. During those years, plaintiff worked in a large office which he described as "well windowed," "well lit" and a "very nice office." In the performance of his duties, Mr. Shoemaker used a telephone system to control between eight to ten tower operators who directed the trains pursuant to his instructions.

 After accepting the dispatcher position, plaintiff allegedly came under much stress. However, while he occasionally became physically ill when "things got hectic," he never received any medical treatment for any stress-related condition during that time. After Conrail became his employer on April 1, 1976, plaintiffs job duties changed considerably as his workload increased and he began working with new people and different territories.

 On August 30, 1987, plaintiff felt discomfort in his right chest area while he was playing softball. He was taken to a local hospital and soon thereafter released. Later that evening, however, while watching television, plaintiff felt pain in the center of his chest. He was once again taken to a hospital where he was diagnosed as having suffered a heart attack (an acute myocardial infarction.)

 (c) Charles Barber

 Plaintiff Barber was employed by the Reading Railroad as a block operator from 1965 until 1974, although he occasionally worked as a relief train dispatcher between 1968 and 1974. From 1974 to 1980, plaintiff served permanently as a train dispatcher. However, in 1980 he was dismissed from that position after having directed three passenger trains down an out-of-service track. He returned to his duties as a block operator and clerk before resuming his position as a train dispatcher in September 1983. From 1983 until July 1987, plaintiff worked as a train dispatcher or as an assistant chief train dispatcher, moving back and forth between the jobs as the duties of the jobs changed and as seniority dictated.

 Between 1983 and 1987, there were changes in the manner in which these jobs were performed, caused by cuts in supporting manpower, realignment and consolidation of dispatching territories, as well as installation and utilization of computers and radios.

 Prior to the commencement of his disability in July of 1987, plaintiff had had several years of medical treatment for emphysema. He was also hospitalized in early 1985 for ulcers. Afterwards, Mr. Barber continued to take medication for both conditions. Except for occasional stomach cramps, his stomach problems did not recur until July 30, 1987. On that date, plaintiff suffered a severe ulcer attack and has not returned to work.

 (d) Wayne Owens

 Plaintiff worked for nearly twenty years as a train dispatcher, first with the Reading Company and later with Conrail. In October 1987, Mr. Owens stopped working after contracting bronchial pneumonia. He has not returned to work, as he feels "spent," "done in," "used up," and "burnt out." Plaintiff's emotional problems allegedly stem from certain safety and operating rule violations, reductions in force, the introduction and utilization of computers, loss of lunch and rest breaks, as well as disciplinary action taken against him for absenteeism and insubordination.

 Mr. Owens' disability is solely emotional in nature. His treating physician states in a affidavit:

The clinical picture that Mr. Owens presents is that of a severely emotionally disturbed individual who become overwhelmed with anxiety frequently and experiences frequent depressions . . . .
I believe that Mr. Owens' occupation as a train dispatcher for Conrail played a major role on the production of this severe Generalized Anxiety Disorder and Depressive Neurosis. I believe also that Mr. Owens is totally disabled from returning to work as a train dispatcher.
At this time, because of the severe degree of anxiety, depression and mental impairment which Mr. Owens suffers, I feel that he is disabled from doing any type of work.


 Defendant first maintains that plaintiffs fail to state a claim under the FELA because plaintiffs' alleged injuries occurred as a result of the performance of their normal duties, established under a collective bargaining agreement between defendant and plaintiffs' union, the American Train Dispatchers Association (ATDA). Defendant contends that these "minor disputes" can only be resolved by the National Railroad Adjustment Board ("NRAB") pursuant to the Railway Labor Act ("RLA"), 45 U.S.C. [section] 151 et seq.

 Defendant's argument is to some extent supported by the language and legislative history of the RLA since complaints of stress-related "injuries" can be easily described as grievances arising out of the interpretation or application of working conditions.

[The RLA] refers to 'disputes concerning rates of pay, rules, or working conditions,' and to 'disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.' 45 U.S.C.A. [section] 151a. The Supreme Court has categorized the former as major disputes and the latter as minor ones . . . . The distinction is crucial because the Railway Labor Act contemplates and commands that the parties settle all 'minor' disputes through the grievance procedures. If such procedures fail, either party has the right of recourse to compulsory arbitration by way of appeal to the National Railroad Adjustment Board. 45 U.S.C. [section] 153 First (i). . . .

 Reed v. National Airlines Inc., 524 F.2d 456, 458-59 (5th Cir. 1975). See also, Atchison, Topeka and Santa Fe R. Co. v. Buell, 480 U.S. 557, 562 & n. 9, 107 S. Ct. 1410, 1414 & n. 9, 94 L. Ed. 2d 563, 571 & n. 9 (1987).

 Few cases, however, have discussed the displacement of FELA tort remedies by the RLA. One such case, Yawn v. Southern Ry., 591 F.2d 312 (5th Cir.), cert. denied, 442 U.S. 934, 99 S. Ct. 2869, 61 L. Ed. 2d 304 (1979), squarely undermines defendant's position. In Yawn, railroad workers alleged that the railroad negligently failed to provide adequate help and adequate time with which to do their jobs, thereby causing them to suffer physical pain, mental anguish, and gastrointestinal disturbances. The court concluded that plaintiffs' FELA claims were not barred by the RLA.

The basic theme of the railroads' argument is that since the employees' claims are in essence a minor dispute over working conditions, they must be submitted to grievance procedure resolutions. Although the "Adjustment Board is an expert body designed to settle 'minor' disputes that arise from day to day in the railroad industry," [citation omitted], the Board is not entrusted with the function of resolving personal injury claims. If an employee can establish physical injury caused by carrier negligence, his is entitled to damages under the FELA. Any allegation of railroad negligence in failing to provide an employee with sufficient help could be characterized as a dispute over working conditions. However, the fact that an employee suffers injury because of unsafe working conditions does not preclude access to the FELA.
* * * *
The source of these employees' right not be negligently injured is not found in the collective bargaining agreement but derives from an express statutory provision designed to provide employees a means of compensation for on-the-job injuries resulting in whole or in part from the railroad's negligence.

 Id., 591 F.2d at 317.

 Judge Posner, however, writing for the Seventh Circuit in Lancaster v. Norfolk and Western Ry. Co., 773 F.2d 807, 813 (7th Cir. 1985), cert. denied, 480 U.S. 945, 107 S. Ct. 1602, 94 L. Ed. 2d 788 (1987), moved beyond the jurisdictional issue and concluded that a plaintiff did not state a claim under the FELA.

The reason why the question whether the Railway Labor Act supplants any part of the Federal Employer Liability Act tends not to arise might be the following: the FELA does not create a cause of action for tortious harms brought about by acts that lack any physical contact or threat of physical contact -- an act such as telling a man he's fired, which is precisely the type of act for which the Railway Labor act provides a swift and adequate remedy. . . . Although [ Yawn ] points the other way, we find its analysis unpersuasive. Clerical employees claimed to have suffered physical and mental strain because the railroad had not given them enough help for them to be able to do their jobs adequately. In holding that the railroad's conduct might be actionable under the FELA, the court pointed out correctly that a railroad worker who incurs physical or mental injury from unsafe working conditions has an FELA claim. . . . But the complaint was not that working conditions were unsafe; it was that clerical employees had been given too much -- not too dangerous -- work to do. That is not our idea of an FELA claim; it has nothing to do with the security of the person from physical invasions or menaces.

 Id., 773 F.2d at 813.

 Two years after Lancaster, however, the United States Supreme Court did much to put this jurisdictional question to rest, specifically being asked to determine "whether the possibility of pursuing a labor grievance under the RLA deprives an employee of his right to bring an FELA action." Atchison, Topeka and Santa Fe R. Co. v. Buell, 480 U.S. at 559, 107 S. Ct. at 1412, 94 L. Ed. 2d at 569. The plaintiff in Buell was a carman employed by defendant railroad who alleged that

he had suffered severe personal injuries as a result of the Railroad's failure
"to provide [him] with a safe place to work, including, but not limited to, having fellow employees harass, threaten, intimidate [him], and in particular, foreman Ed Wright threatened, harassed, and intimidated [him] maliciously and oppressively, negligently, and intentionally, in order to cause personal injury to [him] and to cause mental and emotional suffering. All said acts were condoned and approved by [the Railroad] and as a direct and proximate result of said negligence and intentional ...

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