                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


SCOTT R. WOLFE,                           No. 12-35054
                  Plaintiff-Appellant,
                                            D.C. No.
                 v.                      1:09-cv-00166-
                                              RFC
BNSF RAILWAY COMPANY, A
Delaware corporation,
               Defendant-Appellee.          OPINION


      Appeal from the United States District Court
              for the District of Montana
   Richard F. Cebull, Senior District Judge, Presiding

                Argued and Submitted
           July 11, 2013—Portland, Oregon

                  Filed April 23, 2014

      Before: Harry Pregerson, Mary H. Murguia,
         and Morgan Christen, Circuit Judges.

              Opinion by Judge Pregerson
2                         WOLFE V. BNSF

                           SUMMARY*


               Preemption / Railway Labor Act

   The panel affirmed in part and reversed in part the district
court’s summary judgment entered in favor of the BNSF
Railway Company in a diversity action brought by a railway
employee alleging railway mismanagement and misconduct.

    The plaintiff-employee was working as a track inspector
when his hi-rail truck collided head-on with a freight train.
After disciplinary proceedings, BNSF dismissed the
employee. The employee brought this action after he was
reinstated without backpay.

    The panel affirmed the district court’s ruling that the
employee’s state law claim—alleging injury caused by
BNSF’s misconduct in employee disciplinary proceedings
under the collective bargaining agreement (“CBA”)—was
preempted by the federal Railway Labor Act. The panel
reversed the district court’s summary judgment on the
employee’s state law claim against BNSF concerning BNSF’s
alleged negligent mismanagement that resulted in a head-
on collision. The panel held that the employee’s claim
concerning BNSF’s conduct leading to the collision was
independent of the CBA and did not require interpretation of
the CBA, and therefore the claim was not preempted by the
Railway Labor Act. Finally, the panel reversed the district
court’s ruling dismissing Wolfe’s punitive damages claim.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       WOLFE V. BNSF                           3

                         COUNSEL

Sharon L. Van Dyck (argued), Van Dyck Law Firm, PLLC,
St. Louis Park, Minnesota, for Plaintiff-Appellant.

Donald J. Munro (argued), Jones Day, Washington, D.C.;
Michelle T. Friend, Hedger Friend, PLLC, Billings, Montana,
for Defendant-Appellee.


                          OPINION

PREGERSON, Circuit Judge:

    Plaintiff-Appellant Scott Wolfe (“Wolfe”) appeals the
district court’s order granting summary judgment in favor of
Defendant-Appellee BNSF Railway Company (“BNSF”) on
Wolfe’s claims under Montana Code Annotated (“MCA”)
§ 39-2-703. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We affirm in part, reverse in part, and remand for
further proceedings.

  FACTUAL AND PROCEDURAL BACKGROUND

    Wolfe is a longtime employee of BNSF. In December
2008, Wolfe worked in Shelby, Montana, as a track inspector
for the first time. Before then, he worked primarily as a
foreman and a machine operator at BNSF. BNSF mechanic
Robert Flesche provided Wolfe with a hi-rail truck, which can
be driven along rails. Flesche had previously complained
about the hi-rail truck’s poor condition to BNSF. Flesche
stated that “nobody wanted to be assigned that truck, certainly
nobody like[d] it for a h[i-]rail truck.” Flesche said
“[e]verything was just more difficult with that truck. . . . [I]t
4                      WOLFE V. BNSF

was a rough riding truck, very rough riding.” Flesche had
“told the railroad, it was a bad [truck], [and that] it sure was
not suited for track inspection.” Nevertheless, Flesche gave
Wolfe the truck because it was the only one available.

    Flesche quickly showed Wolfe how to use the hi-rail
attachments on the truck. The hi-rail attachments were four
heavy mechanical assemblies, two in front and two in back,
that were supposed to drop the truck’s wheels onto the rail
and lock them in place, keeping the truck on the rails like a
standard railroad car. Flesche also “showed [Wolfe] a little
about” the truck’s Hi-rail Limits Compliance System
(“HLCS”). The HLCS is a GPS system that identifies where
vehicles are on the tracks, interfaces with BNSF’s computer
system, and ensures that employees stay within their railroad
track authorities (the boundaries of the areas to which they
have been assigned). Wolfe previously had attended
mandatory training on using the HLCS. At that training,
managers read material on the HLCS to the employees, but
there was no demonstration on how to work the system.
Flesche concluded after observing Wolfe that “[Wolfe] had
not ever been trained on using [the HLCS].”

    On the morning of December 18, 2008, Wolfe requested
track authority from the dispatcher, James Trotchie, to go east
on a particular stretch of track. Trotchie misheard Wolfe’s
request for permission to go “east” and, assuming that he
wanted to go west, verbally approved Wolfe’s request while
assigning him track authority in the HLCS to go west. Wolfe
proceeded to go east on the rails in his hi-rail truck.

    Approximately four miles from where Wolfe began to
travel on the rails, Wolfe encountered a freight train head on.
                       WOLFE V. BNSF                          5

Wolfe jumped off the truck before it was hit by the train. The
truck was damaged, but Wolfe was not physically injured.

    Wolfe is a member of the Brotherhood of Maintenance of
Way Employes union (the “Union”). The Union has a
collective bargaining agreement (“CBA”) with BNSF. Under
Rule 40 of the CBA, an employee who has worked 60 days or
more, such as Wolfe, “will not be disciplined or dismissed
until after a fair and impartial investigation has been held.”
BNSF conducted two formal investigations of Wolfe’s
accident pursuant to Rule 40 to determine (1) whether Wolfe
failed to activate the HLCS on his truck and (2) whether
Wolfe failed to operate within the limits of his track authority
at the time of the accident. After the investigations, BNSF
determined that Wolfe committed the alleged misconduct.
Wolfe received a 30-day suspension for his failure to activate
the HLCS and was dismissed for his failure to have main
track authority.

    Wolfe challenged his dismissal. On Wolfe’s behalf, the
Union referred the grievance to the National Railroad
Adjustment Board (the “Adjustment Board”).                The
Adjustment Board was created under the Railway Labor Act
to resolve disputes between carriers and their employees. 45
U.S.C. § 153. The Adjustment Board (1) determined that
BNSF proved that Wolfe failed to engage his HLCS and
violated his track authority, (2) affirmed Wolfe’s 30-day
suspension for the HLCS violation as reasonable, and
(3) reduced Wolfe’s dismissal to a long-term suspension
because it found that “dismissal was too severe a penalty” for
the track authority violation. The Adjustment Board ordered
that Wolfe be reinstated with his seniority unimpaired, but
decided that he was not entitled to backpay.
6                     WOLFE V. BNSF

    Wolfe filed a complaint in Montana state court asserting
claims under MCA § 39-2-703, which governs the liability of
railways for negligent mismanagement. BNSF removed the
claims to federal court based on diversity jurisdiction.
Wolfe’s amended complaint states two claims under MCA
§ 39-2-703: (1) that BNSF’s mismanagement and the
negligence of its employees caused the train collision; and
(2) that BNSF mismanaged the subsequent investigation and
disciplinary proceedings.

    BNSF filed a motion for summary judgment on the
ground that Wolfe’s state-law claims were preempted by the
Railway Labor Act, 45 U.S.C. § 151-88. The district court
granted the motion. The district court found that Wolfe’s
claims were preempted because “[t]he facts surrounding
[Wolfe’s] claim[s] appear to be inextricably intertwined with
the grievance procedures controlled by the CBA.” On appeal,
Wolfe concedes that his claim challenging the BNSF’s
investigation and disciplinary proceedings, which were
governed by the CBA, is preempted, but contends that the
district court erred in granting summary judgment on Wolfe’s
Montana-law claim against BNSF concerning the alleged
negligent mismanagement that resulted in the head-on
collision.

               STANDARD OF REVIEW

    We review a district court’s ruling regarding preemption
de novo. Espinal v. Nw. Airlines, 90 F.3d 1452, 1455 (9th
Cir. 1996). We review a grant of summary judgment de
novo. Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097,
1103 (9th Cir. 1998).
                          WOLFE V. BNSF                               7

                          DISCUSSION

A. Preemption Under the Railway Labor Act (RLA)

    “[T]o promote stability in labor-management relations,”
the RLA requires arbitration for two classes of disputes
concerning “rates of pay, rules or working conditions.”
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994)
(internal quotation marks and citations omitted).1 The first
class—major disputes—concerns the formation or negotiation
of collective bargaining agreements. Id. The second
class—minor disputes—concerns “‘controversies over the
meaning of an existing collective bargaining agreement in a
particular fact situation.’” Id. at 253 (quoting Bhd. of R.R.
Trainmen v. Chi. River & Ind. R.R. Co., 353 U.S. 30, 33
(1957)). The parties agree that the only way Wolfe’s claim
is preempted is if the conflict over the collision constitutes a
minor dispute. BNSF “bears the burden of proof on its
preemption defense.” Jimeno v. Mobil Oil Corp., 66 F.3d
1514, 1526 n.6 (9th Cir. 1995).

    Before the Supreme Court’s decision in Norris, “this
circuit considered the scope of minor disputes under the RLA
to be quite expansive.” Espinal, 90 F.3d at 1456. But Norris
“substantially narrowed the scope of RLA preemption.” Id.
In Norris, the Supreme Court observed that a state-law claim
is preempted by the RLA only when the state claim
“involve[s] duties and rights created or defined by [a] CBA”
and is therefore “dependent on the interpretation of a CBA.”
512 U.S. at 258, 262. In contrast, “a state-law cause of action



 1
   The RLA “was extended in 1936 to cover the airline industry.” Norris,
512 U.S. at 248.
8                     WOLFE V. BNSF

is not pre-empted by the RLA if it involves rights and
obligations that exist independent of the CBA.” Id. at 260.

  Applying the Norris framework, we conclude that
Wolfe’s state claim concerning the collision is not preempted.

B. Montana’s Broad Statutory Protection of Railway
   Employees

    Under MCA § 39-2-703(1), a

       corporation operating a railway or railroad in
       [Montana] is liable for all damages sustained
       by any employee of the . . . corporation in
       consequence of the neglect of any other
       employee of the . . . corporation or by the
       mismanagement of any other employee . . .
       when the neglect, mismanagement, or wrongs
       are in any manner connected with the use and
       operation of a railway or railroad on or about
       which the employee is employed.

    The purpose of the statute is twofold. First, the statute
“eliminate[s] the fellow-servant defense to common-law
causes of action,” enabling a railroad employee to recover
from an employer for the negligent acts of his co-workers.
Haux v. Mont. Rail Link, Inc., 97 P.3d 540, 543 (Mont. 2004);
see also Dillon v. Great N. Ry. Co., 100 P. 960, 961–62
(Mont. 1909). Second, the statute “provides for a cause of
action for mismanagement.” Haux, 97 P.3d at 543. The
language of the statute, though expansive, “is clear,
unambiguous, direct and certain. . . . The plain meaning of the
language . . . requires that a railroad be held liable for
mismanagement.” Id.
                      WOLFE V. BNSF                          9

    In Winslow v. Montana Rail Link, Inc., the Montana
Supreme Court recognized that MCA § 39-2-703 employs
“very broad language” in defining the right of railway
employees to sue for “all damages” resulting from a railway’s
negligence or mismanagement, including when that conduct
results in the employee’s discharge from employment.
16 P.3d 992, 996 (Mont. 2000) (“Winslow I”); 121 P.3d 506,
511–12 (Mont. 2005) (“Winslow II”). The right of railway
employees to sue on the basis of negligence or
mismanagement resulting in termination may be unusual in
other jurisdictions, but such a right is undoubtedly recognized
in Montana.

C. Wolfe’s Claim Concerning the Collision is Not
   Preempted Under the RLA.

   1. Wolfe’s Claim Does Not Require Interpretation of
      the CBA.

    Under Norris, the crucial inquiry in determining whether
a cause of action under state law is preempted by the RLA is
whether the “state-law claim is dependent on the
interpretation of a CBA.” Norris, 512 U.S. at 262. If the
cause of action requires interpretation of a CBA, then the
claim is preempted. Id. at 262–63. “The plaintiff’s claim is
the touchstone for this analysis; the need to interpret the CBA
must inhere in the nature of the plaintiff’s claim.” Cramer v.
Consol. Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001).
“As long as the state-law claim can be resolved without
interpreting the agreement itself, the claim is ‘independent’
10                        WOLFE V. BNSF

of the [CBA] for . . . pre-emption purposes.” Lingle v. Norge
Div. of Magic Chef, Inc., 486 U.S. 399, 410 (1988).2

    In Winslow, the Montana Supreme Court held that a claim
for negligent mismanagement under MCA § 39-2-703 was
not preempted by the RLA. Winslow I, 16 P.3d at 996–97;
Winslow II, 121 P.3d at 513. In that case, an employee was
diagnosed with a hernia in 1992, and in 1995 it was severely
aggravated while he performed his duties. Winslow II,
121 P.3d at 509. Pursuant to a CBA, the employer conducted
a hearing to determine if the employee had fraudulently
withheld information regarding his 1992 injury. Id. at 510.
As a result of the hearing, the employee was terminated. Id.
A special board of adjustment3 affirmed that the railroad had
the right under the CBA to terminate the employee for his
dishonesty. Id.

    The employee sued under MCA § 39-2-703, alleging that
the railroad had “negligently mismanaged its investigation [of
his injuries] and that he was wrongfully discharged.” Id.
(internal quotation marks omitted). At trial, the jury found
that each party was negligent, allocating 61.25% liability to


  2
   The standard for preemption under the RLA is “virtually identical to
the pre-emption standard” under § 301 of the Labor Management
Relations Act established by Lingle. Norris, 512 U.S. at 260.
 3
    Under the RLA, union grievances may be referred to “a special board
of adjustment” to resolve the dispute that would “otherwise [be] referable
to the Adjustment Board.” 45 U.S.C. § 153(x). A decision by a special
board of adjustment is enforceable “in the same manner and subject to the
same provisions that apply to proceedings for enforcement of compliance
with awards of the Adjustment Board.” Id. Winslow’s CBA provided for
the arbitration of his case before a special adjustment board. Winslow II,
121 P.3d at 510.
                       WOLFE V. BNSF                          11

the railroad, 38.75% to the employee, and awarding the
employee compensatory damages. Id.

    The railroad appealed, arguing that Winslow’s claim was
preempted by the RLA because “his state-law claim of
negligent mismanagement . . . required the court or jury to
interpret existing provisions of his CBA.” Id. at 512. The
Montana Supreme Court disagreed, holding that Winslow’s
claim was not preempted because it was “premised upon . . .
a state law claim” which was “independent of whatever labor
agreement might govern.” Id. at 513 (internal quotation
marks omitted); see also Winslow I, 16 P.3d at 996–97.

     Similarly, applying the rule set forth in Norris and Lingle,
we have consistently held that claims for employer
negligence are not preempted by the RLA when the right
involved is independent of a CBA. See Wharf v. Burlington
N. R.R. Co., 60 F.3d 631, 635-636 (9th Cir. 1995) (holding
that employee’s claim for damages for personal injury caused
by the railroad’s negligence was not preempted because
“[t]he [RLA] . . . has no application to a claim for damages to
the employee resulting from the negligence of an employer
railroad” (omission in original) (internal quotation marks
omitted)); see also Ward v. Circus Circus Casinos, Inc.,
473 F.3d 994, 999 (9th Cir. 2007) (finding that employees’
state claims against their employer for negligently hiring and
supervising its security guards were not preempted by § 301
of the Labor Management Relations Act because they “d[id]
not require interpretation of [a] CBA”). In contrast, when a
duty of care owed to the employee derives solely from a
CBA, the claim is preempted. See Int’l Bhd. of Elec. Workers
v. Hechler, 481 U.S. 851, 860–62 (1987) (holding that
employee’s negligence claim against her union was
preempted because, unlike an employer, the union owed
12                    WOLFE V. BNSF

plaintiff a duty only by “accepting a duty of care through
[the] contractual arrangement” of a CBA).

    Wolfe asserts BNSF negligently mismanaged him in the
following respects: (1) BNSF failed to properly train him on
how to use the HLCS and provided him with a hi-rail truck
that was in poor operating condition, and (2) the dispatcher
failed to provide him with proper track authority and failed to
warn him of the oncoming freight train. Wolfe argues that
this negligent misconduct caused the accident that led to his
termination, and that he has suffered damages as a result of
this termination. Here, as in Winslow, Wolfe’s cause of
action for negligent mismanagement does not arise out of a
CBA.

     To determine whether a claim arises out of a CBA, we
first “determine ‘whether the CBA must serve as the
measuring rod in determining whether [the defendant] acted
reasonably.’” Espinal, 90 F.3d at 1457 (alteration in original)
(quoting Jimeno, 66 F.3d at 1524). A claim does not involve
interpretation of a CBA where the CBA is “silent” on how the
employer may address the issues raised by an employee’s
claim. See Jimeno, 66 F.3d at 1524 (holding that employee’s
disability claim did not require interpretation of the CBA
where the CBA was “silent regarding the ways that
management may either restructure positions to modify
workload or design special arrangements . . . to accommodate
employees”). Further, where a CBA contains general
provisions involving the same subject matter as an
employee’s claim but does not provide a “framework” for
how the employer may address the issue in dispute, that claim
does not require interpretation of the CBA. See Espinal,
90 F.3d at 1457 (holding that employee’s state disability
claim was not preempted where the CBA contained general
                      WOLFE V. BNSF                        13

provisions on physical fitness but “d[id] not provide a
framework for challenging determinations that an employee
is not physically fit” or “a mechanism to accommodate
disabled workers”).

    As in Jimeno, BNSF has not identified any provision in
the CBA that would require interpretation of the CBA to
resolve Wolfe’s negligent mismanagement claim. There are
no provisions in the CBA regarding (1) how BNSF should
have managed training employees for the HLCS, (2) how
BNSF should maintain hi-rail trucks to ensure that they are in
safe operating condition, (3) how BNSF should handle claims
for co-worker negligence, or (4) how BNSF should handle
claims that it mismanaged its employees. Further, as in
Espinal, although the CBA generally provides that an
employee may complain of unjust treatment to BNSF, it does
not provide a framework for resolving challenges involving
negligence or mismanagement. Thus, the CBA does not
govern Wolfe’s claim.

     Wolfe’s claim that BNSF mismanaged the employees
who negligently provided him with faulty equipment, failed
to train him properly on how to use the HLCS, and provided
him with incorrect track authority “can be analyzed entirely
apart from the CBA.” Espinal, 90 F.3d at 1457. In other
words, Wolfe’s “right to be free from mismanagement . . . is
independent of any negotiated labor agreement.” Winslow I,
16 P.3d at 997.

   We therefore conclude that Wolfe’s claim concerning the
conduct leading to the collision is independent of the CBA
and does not require interpretation of the CBA. Thus,
Wolfe’s claim is not preempted by the RLA.
14                    WOLFE V. BNSF

     2. BNSF’s Disciplinary Proceedings Are Not the
        Legal Cause of Wolfe’s Suspension and
        Termination.

    BNSF argues that Wolfe’s claim is preempted on the
ground that “[t]he only injury asserted by Mr. Wolfe is
dismissal from employment,” rather than personal injury
arising from the accident. Thus, because the collision led to
the CBA proceedings, which then led to Wolfe’s firing,
Wolfe’s claim would require a court to evaluate whether
Wolfe was properly disciplined under the CBA. We disagree.

    First, we note again that MCA § 39-2-703, while perhaps
unusual in its breadth, is exceedingly clear. Montana law
confers on Wolfe, independently of the CBA, the right not to
be negligently injured by his coworkers or employer. This
right protects Wolfe not only from personal injuries, but also
from negligent firing. Winslow I, 16 P.3d at 995–96;
Winslow II, 121 P.3d at 511–12. Thus, under Montana law,
Wolfe has sufficiently alleged an injury that was suffered as
a result of BNSF’s negligence (the actions leading up to the
collision). This causal inquiry does not require interpretation
of the CBA.

    Further, it is well-established law that, when an employee
has been terminated pursuant to the CBA’s provisions, that
employee may assert a separate and independent state claim
challenging his termination. See Norris, 512 U.S. at 249–51,
266 (holding that employee who was terminated after a
grievance hearing under the CBA could bring a state-law
claim for wrongful discharge); Saridakis v. United Airlines,
166 F.3d 1272, 1277 (9th Cir. 1999) (stating that the Supreme
Court has rejected the argument that a state-law claim is
preempted because it “involve[s] the question whether [the
                      WOLFE V. BNSF                         15

employee] was fired pursuant to the CBA’s provisions”);
Winslow II, 121 P.3d at 510, 513 (holding that employee
whose termination under the CBA was affirmed by a special
adjustment board could bring a claim under MCA § 39-2-703
challenging his termination). If disciplinary proceedings
pursuant to a CBA and resulting in an employee’s termination
constituted the legal cause of that termination for all
purposes, the employee could never assert an independent
state-law claim.

     When an employee is terminated following proceedings
conducted in accordance with a CBA, there are two distinct
inquiries: (1) whether the “discharge [was] in violation of the
CBA”; and (2) “the purely factual inquiry” into the
circumstances underlying the termination. Norris, 512 U.S.
at 266. The first inquiry requires interpretation of the CBA.
Id. But the second inquiry into “‘purely factual questions’
about an employee’s conduct or an employer’s conduct and
motives do[es] not ‘requir[e] a court to interpret any term of
a collective-bargaining agreement.’” Id. at 261–62 (quoting
Lingle, 486 U.S. at 407 (second alteration in original)). This
is so even if the two inquiries “would require addressing
precisely the same set of facts.” Lingle, 486 U.S. at 410
(emphasis added); see Wharf, 60 F.3d at 636 (holding that
plaintiff’s state claim for damages was not preempted “even
if a new trial on damages would require the court to examine
facts that would also be relevant to a wrongful discharge
claim under the RLA”). Thus, resolving an independent
state-law claim does not require a court to “resort to the CBA
. . . to determine whether [the employee], in fact, was
discharged” or to determine whether the employee’s
termination was justified by the CBA. Norris, 512 U.S. at
266.
16                     WOLFE V. BNSF

    Fennessy v. Southwest Airlines, 91 F.3d 1359 (9th Cir.
1996), illustrates these two distinct inquiries. There, we held
that an employee whose termination for violations of a CBA
was upheld by an Adjustment Board could bring an
independent claim challenging his termination. Id. at 1362.
In Fennessy, an airline employee hit an aircraft with a cart
that he was driving, scratching the plane. Id. at 1361. The
employee was terminated after the airline “held a factfinding
session” in accordance with the CBA and determined the
employee damaged the aircraft. Id. “After a hearing, a
Systems Board of Adjustment . . . upheld [the employee’s]
termination.” Id.

    The employee then filed a lawsuit in federal court,
asserting a claim under 45 U.S.C. § 152, on the ground that
he was terminated in retaliation for engaging in union
activities. Id. Under § 152, an employee has a private right
of action for wrongful discharge. Id. at 1362–65. The airline
contended that the employee’s claim constituted a minor
dispute under the RLA. We disagreed.

    We acknowledged that the grievance before “the
Adjustment Board [was] unquestionably . . . a minor dispute.”
Id at 1361. We held that “[t]he Adjustment Board’s decision
is binding on [the employee] with regard to what it decided:
that his discharge did not violate the [CBA].” Id. at 1361–62.
But “[the employee] did not seek review of the Board’s
decision.” Id. at 1362. “Instead, he brought []his action in
district court, alleging that his discharge . . . gave rise to an
independent statutory claim under 45 U.S.C. § 152.” Id. We
held that “the mere fact that [the employee’s] discharge could
be grieved on contractual grounds under the CBA does not
mean that his statutory claim under the RLA is a minor
dispute.” Id.
                      WOLFE V. BNSF                        17

    As in Fennessy, Wolfe had a related minor dispute that
was submitted to arbitration before the Adjustment Board;
similarly, the Adjustment Board’s decision here binds Wolfe
with regard to its finding that Wolfe’s suspension and
withholding of back pay did not violate the CBA. But Wolfe
does not seek judicial review of the Adjustment Board’s
decision. He brought suit under MCA § 39-2-703 alleging
that he suffered damages because of the negligence and
mismanagement of BNSF’s employees, a state claim
independent of the CBA. The issue to be decided here is
whether BNSF’s and its employees’ conduct constitutes
negligence and mismanagement under Montana law. See
Norris, 512 U.S. at 266 (holding that the “issue to be decided
in this [non-preempted] action [is] whether the employer’s
actions make out the element of [wrongful] discharge under
Hawaii law”). Wolfe’s state claim will require a factual
inquiry into Wolfe’s conduct, the dispatcher’s conduct, and
BNSF’s conduct leading up to the head-on collision. But that
is not sufficient to establish preemption. Id. at 261–62. To
do that, BNSF would have to have shown that Wolfe’s claim
depended on an interpretation of the CBA. However, BNSF
is unable to make such a showing.

D. Wolfe’s Punitive Damages Claim is Reinstated.

    The parties agree that Wolfe’s claim for punitive damages
rises and falls with his underlying claim. Accordingly,
because we find that Wolfe’s claim based on conduct relating
to the collision be reinstated, we find that Wolfe’s punitive
damages claim should be reinstated.
18                   WOLFE V. BNSF

                     CONCLUSION

    For the foregoing reasons, we affirm in part and reverse
in part the district court’s order granting BNSF summary
judgment. We AFFIRM the district court’s ruling that
Wolfe’s claim alleging injury caused by BNSF’s misconduct
in proceedings pursuant to the CBA is preempted, as Wolfe
concedes. We REVERSE the district court’s ruling that
Wolfe’s claim that he suffered injury as a result of BNSF’s
and its employees’ alleged negligence and mismanagement
leading up to the collision is preempted and REVERSE the
district court’s ruling dismissing Wolfe’s punitive damages
claim. We REMAND for further proceedings consistent with
this opinion. Costs awarded to Appellant.

     Affirmed in part, Reversed in part, and Remanded.
