                                  United States Court of Appeals,

                                            Fifth Circuit.

                                            No. 92-5753.

                             Sandy Diana HIRRAS, Plaintiff-Appellant,

                                                  v.

NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak, Defendant-Appellee.

                                            Jan. 7, 1994.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, REAVLEY, and EMILIO M. GARZA, Circuit Judges.

       EMILIO M. GARZA, Circuit Judge:

       Plaintiff Sandy Diana Hirras brought this lawsuit against her employer, the National Railroad

Passenger Corporation ("Amtrak"), alleging that Amtrak failed to provide her with a work

environment free from gender-based discrimination. The district court dismissed Hirras's Title VII,

42 U.S.C. § 2000e et seq. (1988), state law intentional infliction of emotional distress, and negligent

infliction of emotional distress claims. We affirm.

                                                   I

       Hirras alleges that shortly after Amtrak hired her as a ticket clerk at its San Antonio station,

she was verbally abused by co-workers, received abusive telephone calls and notes from anonymous

sources, and was the subject of obscene graffiti spray-painted by an anonymous person onto a door

at the station. Hirras further alleges that the harassment became so unbearable that she was forced

to take a leave of absence from her job and is unable to return to work.

       Amtrak, on the other hand, contends that the telephone calls resulted not from sexual

harassment, but rather fro m the arrest of an Amtrak passenger in San Antonio who allegedly was

transporting drugs aboard an Amtrak train.1 Amtrak also argues that it did not tolerate a hostile work

environment, but instead contacted four law enforcement agencies—the Federal Bureau of

   1
    In support of this contention, Amtrak argues that other employees, both male and female,
received threatening phone calls during approximately the same time period that Hirras was
harassed.
Investigation and the Amtrak, Southern Pacific, and San Antonio Police Departments—to investigate

the calls and notes that Hirras received. Unfortunately, however, the agencies were unable to

determine the source of the calls and notes.

        The district court granted Amtrak's motion to dismiss Hirras's state law claim for negligent

infliction of emotional distress, finding that Texas does not recognize such a claim. The district court

also held that Hirras's state law claim for intentional infliction of emotional distress was preempted

by the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq. Finally, the district court dismissed

Hirras's Title VII claim without prejudice, holding that the claim was subject to the arbitration

provisions of the RLA, 826 F.Supp. 1062.2 Hirras now appeals all three aspects of the district court's

judgment.3

                                                   II

        Hirras, relying on Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d

147 (1974), initially contends that her Title VII claim is cognizable in federal court and is not

governed by the mandatory arbitration provisions of the RLA.                Amtrak, citing Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), argues that

Hirras's Title VII claim is subject to the arbitration provisions of the RLA and, therefore, that the

district court did not err in dismissing the claim for lack of subject matter jurisdiction.

        In reviewing a Rule 12(b)(6) motion to dismiss, the facts alleged in the complaint are assumed

correct. Doe v. State of Louisiana, 2 F.3d 1412, 1413 (5th Cir.1993). The complaint may not be

dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her

claim that would entitle her to relief. Id. at 1416.


   2
    While an order dismissing a complaint "without prejudice" usually is not appealable because
the plaintiff may file an amended complaint, the district court's order in this case is final and
appealable because no amendment is possible. "Without prejudice" here simply meant without
detriment to Hirras's ability to present the claims to an arbitrator. See Farrand v. Lutheran
Brotherhood, 993 F.2d 1253, 1254 (7th Cir.1993).
   3
     The Texas Supreme Court held, after the district court's ruling, that Texas does not recognize
the tort of negligent infliction of emotional distress. See Boyles v. Kerr, 855 S.W.2d 593
(Tex.1993). Consequently, we affirm that portion of the district court's order dismissing Hirras's
negligent infliction of emotional distress claim.
                                                  A

           Section 3 of the RLA provides:

          The disputes between an employee ... and a carrier or carriers growing out of grievances or
          out of the interpretation or application of agreements concerning rates of pay, rules, or
          working conditions ... may be referred by petition of the parties or by either party to the
          appropriate division of the [National Railroad] Adjustment Board ["NRAB"] with a full
          statement of the facts and all supporting data bearing upon the disputes.

45 U.S.C. § 153 First (i). "Minor disputes" include those where "the [employee's] claim is founded

upon some incident of the employment relationship, or asserted one, independent of those covered

by the collective agreement, e.g., claims on account of personal injuries." Elgin, J. & E. Ry. v.

Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945); see also Morales v.

Southern Pacific Transp. Co., 894 F.2d 743, 745 (5th Cir.1990) (stating that claims "which grow out

of the employment relationship can constitute "minor disputes' under the Act, even when the claims

do not arise directly from the collective bargaining agreement"). The NRAB's jurisdiction over minor

disputes is exclusive.4 Andrews v. Louisville & N. Ry., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95

(1972). "[I]f there is any doubt as to whether a dispute is major or minor a court will construe the

dispute to be minor." Railway Labor Executives Ass'n v. Norfolk & W. Ry., 833 F.2d 700, 705 (7th

Cir.1987).

                                                  B

          In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26

(1991), the plaintiff, as required by his employer, registered as a securities representative with the

New York Stock Exchange. Gilmer's registration application provided that he agreed to arbitrate any

controversy arising out of the employment relationship or termination of his employment. After

Interstate terminated his employment, Gilmer brought suit alleging that Interstate had discharged him

because of his age, in violation of the Age Discrimination in Employment Act ("ADEA").5 The



   4
    Major disputes, on the other hand, involve those that relate to the formation of collective
bargaining agreements or efforts to secure them. Burley, 325 U.S. at 723, 65 S.Ct. at 1290. The
terms "major" and "minor" obviously do not describe the gravity of the dispute.
   5
       29 U.S.C. § 621 et seq.
Supreme Court found that, pursuant to the Federal Arbitration Act ("FAA"),6 Gilmer was required

to arbitrate his ADEA claim:

        It is by now clear that statutory claims may be the subject of an arbitration agreement,
        enforceable pursuant to the FAA.... "[B]y agreeing to arbitrate a statutory claim, a party does
        not forgo the substantive rights afforded by the statute; [instead,] it only submits to their
        resolution in an arbitral, rather than judicial, forum."

500 U.S. at ----, 111 S.Ct. at 1652 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985)).

        The Court in Gilmer rejected several policy arguments against requiring arbitration of

statutory discrimination claims. Gilmer first argued that because the Congress designed the ADEA

to both address individual grievances and promote important social policies, compulsory arbitration

of ADEA claims would be inconsistent with the purposes and statutory framework of the ADEA.

The Court, however, did not find any inherent inconsistency between those policies and the

arbitration of ADEA claims: " "[S]o long as the prospective litigant effectively may vindicate [his or

her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial

and deterrent functions.' " 500 U.S. at ----, 111 S.Ct. at 1653 (quoting Mitsubishi, 473 U.S. at 637,

105 S.Ct. at 3359).

        Gilmer next contended that compulsory arbitration was inappropriate because it would

deprive claimants of the judicial forum provided for by the ADEA. "Congress, however, did not

explicitly preclude arbitration or other non-judicial resolution of claims, even in its recent amendments

to the ADEA." Id. at 1653-54. Moreover, the Court stated that Gi lmer's contention ignored the

ADEA's flexible approach to the resolution of claims, "which suggests that out-of-court dispute

resolution, such as arbitration, is consistent with the statutory scheme established by Congress." Id.

at 1654.

        The Supreme Court in Gilmer also rejected as " "far out of step with our current strong


   6
    9 U.S.C. § 1 et seq. The FAA provides that "[a] written provision in any maritime transaction
or a contract evidencing a transaction involving commerce to settle by arbitration a controversy
thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract." 9 U.S.C. § 2.
endorsement of the federal statutes favoring this method of resolving disputes,' " id. (citation

omitted), a host of challenges raised by Gilmer to the adequacy of arbitration proceedings. First, the

Court refused to presume that arbitrators will be biased in favor of the employer. Id. The Court then

rejected the contention that the limited discovery allowed in arbitration would make it difficult to

prove discrimination. Id. at 1654-55. The Court also found that " "although judicial scrutiny of

arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply

with the requirements of the statute' at issue." Id. at 1655 n. 4 (quoting Shearson/American Express

Inc. v. McMahon, 482 U.S. 220, 232, 107 S.Ct. 2332, 2340, 96 L.Ed.2d 185 (1987)).

          Shortly after the Supreme Court decided Gilmer, we held that a stockbroker's Title VII claim

was subject to compulsory arbitration under the FAA:7 "[W]e have little trouble concluding that Title

VII claims can be subjected to compulsory arbitration. Any broad public policy arguments against

such a conclusion were necessarily rejected by Gilmer." Alford v. Dean Witter Reynolds, Inc., 939

F.2d 229, 230 (5th Cir.1991). Moreover, we found that Gilmer definitively rejected any argument

against arbitration of discrimination claims that was based on a "mistrust of the arbitral process."8

Id.

                                                   C

           Turning now to the question whet her Hirras's Title VII claim is subject to the RLA's

arbitration provisions, we find that Gilmer and Alford compel the conclusion that Hirras's claim is

subject to the arbitration provisions of the RLA.9 The Supreme Court in Gilmer and this Court in

      7
    The stockbroker had signed a securities registration application containing an arbitration
provision similar to the one at issue in Gilmer.
      8
     See also Felt v. Atchison, T. & S.F. Ry., 831 F.Supp. 780 (C.D.Cal.1993) (finding that a
religious discrimination claim brought under Title VII was subject to the compulsory arbitration
provisions of the RLA); Newton v. Southern Pacific Transp. Co., 1992 WL 350245 (W.D.Tex.
Sept. 8, 1992) (holding that a Title VII claim was subject to the compulsory arbitration provisions
of the RLA).
      9
    Although the parties occasionally have stated the issue as whether the RLA "preempts" Title
VII, preemption is not the issue here. See Britt v. Grocers Supply Co., 978 F.2d 1441, 1447 (5th
Cir.1992) (noting that "traditional preemption analysis does not apply in a conflict between two
federal statutes"), cert. denied, --- U.S. ----, 113 S.Ct. 2929, 124 L.Ed.2d 679 (1993); see also
Watt v. Alaska, 451 U.S. 259, 266-67, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981). Instead, we
must determine how the interests underlying Title VII and the RLA can best be accommodated.
Alford determined that there exist no federal or congressional policies prohibiting the submission of

discrimination claims to arbitration. Indeed, § 118 of the 1991 Civil Rights Act encourages the use

of "alternative means of dispute resolution," including arbitration, to resolve disputes arising under

Title VII. See 42 U.S.C.A. § 2000e note (West Supp.1993). Moreover, the facts alleged by Hirras

demonstrate that her claim is founded upon an incident of the employment relationship between her

and Amtrak, thus making her claim a minor dispute under the RLA and subject to the exclusive

jurisdiction of the NRAB. Because "Congress considered it essential to keep ... "minor' disputes

within the [NRAB] and out of the courts," Union P.R.R. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399,

402, 58 L.Ed.2d 354 (1978) (per curiam), we believe that the interests of the RLA and Title VII are

best served by requiring Hirras to arbitrate her Title VII claim under the procedures established by

the RLA.

        Hirras raises several arguments against requiring arbitration of her Title VII claim, all of which

we find to be without merit. Hirras initially contends that Gilmer and Alford are factually

distinguishable from this case, and thus should not control the outcome, because: (1) she did not

waive her right to pursue statutory claims of discrimination in federal court by signing an arbitration

agreement, as did the plaintiffs in Gilmer and Alford; (2) although the collective bargaining

agreement between Amtrak and the Transportation Communications International Union, which

represents Amtrak's employees, contains a provision prohibiting discrimination on the basis of race,

color, religion, sex, national origin, or ancestry, the union cannot waive her right to bring a Title VII

action in federal court; and (3) that the decisions in Gilmer and Alford rested upon pro-arbitration

policy reflected in the FAA, while this case is not governed by the FAA.10 Initially, we note that the

duty to arbitrate here arises not from any agreement between the parties, but rather from the RLA

itself. Moreover, because the specific statutory basis for arbitration of disputes between a railroad

and its employees under the RLA is more compelling than the FAA's general applicability to the

agreements at issue in Gilmer and Alford, the basis for concluding that Hirras's Title VII claim is


   10
      See 9 U.S.C. § 1 (stating that the FAA does not "apply to contracts of employment of ...
railroad employees").
subject to the RLA's arbitration procedures is stronger here.

          Hirras next argues that the outcome of this case is controlled not by Gilmer and Alford, but

rather by Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974),

and its progeny.11 The Supreme Court in Gilmer, however, pointed out four distinctions between

those cases and Gilmer. First, the Gardner-Denver line of cases involved the issue whether

arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims, not

the enforceability of an agreement to arbitrate statutory claims. Second, the labor arbitrators in those

cases had limited authority under the applicable collective bargaining agreements and were not

authorized by the employees to decide the statutory claims,12 while Gilmer had agreed to arbitrate his

discrimination claim. Third, because the employees were represented by their unions in the arbitration

proceedings, an "important concern" in the Gardner-Denver line of cases was the tension between

collective representation and individual statutory rights. Finally, those cases were not decided under

the FAA, which reflects a liberal federal policy favoring arbitration agreements. Gilmer, 500 U.S.

at ----, 111 S.Ct. at 1657.

          We believe that the same four distinctions apply here. The Gardner-Denver line of cases is

not controlling because: (1) they did not involve the issue whether the RLA mandates arbitration of

a railroad employee's Title VII claim that arises out of the working conditions provided by the

railroad; (2) "there is no statutory barrier to submitting [to the NRAB] questions involving the

interpretation of statutes or case law," Richmond, F & P. R.R. v. Transportation Communications

Int'l Union, 973 F.2d 276, 279 (4th Cir.1992); (3) the RLA guarantees Hirras the right to present

her claim, either with or without union involvement, to the NRAB;13 and (4) the RLA, like the FAA,

reflects a liberal federal policy favoring arbitration. Moreover, RLA arbitrators are just as competent

   11
    See Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67
L.Ed.2d 641 (1981); and McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80
L.Ed.2d 302 (1984).
   12
    In Gardner-Denver, the Court noted that a labor arbitrator has authority only to resolve
questions of contractual rights and does not have the "general authority to invoke public laws that
conflict with the bargain between the parties." 415 U.S. at 53-54, 94 S.Ct. at 1022-23.
   13
        See 45 U.S.C. § 153 First (j); Burley, 325 U.S. at 736-38, 65 S.Ct. at 1296-97.
as the New York Stock Exchange arbitrators in Gilmer and Alford to resolve statutory claims of

discrimination. Accordingly, we find that this case more closely resembles the situation presented in

Gilmer and, therefore, is governed by Gilmer rather than Gardner-Denver.

          Hirras further relies on the Supreme Court's opinion in Atchison, T. & S.F. Ry. v. Buell, 480

U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), where the Court addressed the issue whether the

possibility of pursuing a labor grievance under the RLA deprived an employee of the right to seek

damages under the Federal Employers Liability Act ("FELA")14 for personal injuries suffered as a

result of the negligence of a fellow employee or the employer railroad. The Court, rejecting the

railroad's argument that FELA damages were unavailable if the injury was caused by a condition that

could have been the subject of a grievance under the RLA, held that FELA claims did not have to be

submitted to the NRAB pursuant to the RLA's arbitration procedures. Id. at 564, 566-67, 107 S.Ct.

at 1415, 1416. Buell, however, is distinguishable from the present case for two reasons. First,

"Congress enacted the FELA to provide a federal remedy for railroad workers who suffer personal

injuries as a result of the negligence of their employer or their fellow employees." Id. at 561, 107

S.Ct. at 1413. Thus, the railroad's argument that a FELA action was barred whenever the employee's

injury was caused by conduct subject to RLA arbitration ignored the purpose behind the FELA.

Here, Amtrak does not argue that Hirras is barred from recovering Title VII damages, but rather that

her claim for damages may be pressed only before the NRAB. Second, Title VII, unlike the FELA,

encourages parties to resolve employment discrimination disputes through arbitration. See 42 U.S.C.

§ 2000e note (West Supp.1993). Accordingly, Buell is inapposite.

          Finally, Hirras relies on Bates v. Long Island R.R., 997 F.2d 1028, 1034 (2d Cir.), cert.


   14
        45 U.S.C. § 51 et seq. FELA specifically applies to railroads:

                  Every common carrier by railroad while engaging in commerce between any of the
                  several States ... shall be liable in damages to any person suffering injury while he
                  is employed by such carrier in commerce ... resulting in whole or in part from the
                  negligence of any of the officers, agents, or employees of such carrier, or by reason
                  of any defect or insufficiency, due to its negligence, in its cars, engines, appliances,
                  machinery, tract, roadbed, works, boats, wharves, or other equipment.

          45 U.S.C. § 51.
denied, --- U.S. ----, 114 S.Ct. 550, --- L.Ed.2d ---- (1993), where the Second Circuit held that

claims under the Rehabilitation Act of 197315 are not required to be arbitrated under the RLA, even

though the claims "may implicate ... portions of [the relevant] collective bargaining agreement." The

Second Circuit, distinguishing Gilmer as case decided under the FAA, stated that "there are certain

instances when arbitration is inadequate to protect an employee's rights.... When an employee's civil

rights have been violated, arbitration should not be the sole avenue of protection, unless Congress

so specified." Id. (citing Barrentine, 450 U.S. at 734, 101 S.Ct. at 1442). In concluding that

Rehabilitation Act claims need not be submitted to arbitration, the court also relied on the

anti-arbitration policies articulated in Gardner-Denver line of cases.16 However, as the Supreme

Court has already rejected the Gardner-Denver anti-arbitration public policy arguments, we feel the

Second Circuit erred in Bates in relying on them. Moreover, we find that Congress has specified in

the RLA that statutory claims of discrimination arising out of the working conditions provided by

employer are subject to the RLA's arbitration procedures. Accordingly, we do not find Bates

persuasive authority for the proposition that Hirras's Title VII claim need not be submitted to

arbitration.17

   15
        29 U.S.C. § 794.
   16
     The Second Circuit stated that barriers to arbitration of such claims include: (1) arbitrators
resolve disputes according to the terms of the applicable collective bargaining agreement, not
federal law, and (2) the fact-finding process in arbitration generally is not equivalent to judicial
fact-finding because the Federal Rules of Evidence do not apply and little discovery occurs. 997
F.2d at 1035.
   17
     Hirras relies on several other cases, all of which we find to be inapposite. For example, in
Britt, 978 F.2d 1441, the employer contended that the National Labor Relations Act preempted
ADEA claims. In McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1253 (10th Cir.1988), the
defendant airline argued that the RLA preempted the employee's right to recover damages
pursuant to 42 U.S.C. § 1981. As noted above, Amtrak does not argue that the RLA preempts
Title VII or bars Hirras from recovering Title VII damages. In Claps v. Moliterno Stone Sales,
Inc., 819 F.Supp. 141 (D.Conn.1993), the district court, based on the policy arguments
articulated in Gardner-Denver against arbitration of statutory claims, rejected the employer's
argument that it was entitled to summary judgment on the plaintiff's Title VII claims because the
plaintiff had not exhausted the grievance procedures available under the RLA. Because we have
already held that the Supreme Court in Gilmer rejected any broad public policy arguments against
requiring Title VII claims to be arbitrated, see Alford, 939 F.2d at 230, we do not find Claps
persuasive. See also Rodriguez de Quijas v. Shearson/American Express Inc., 490 U.S. 477, 109
S.Ct. 1917, 104 L.Ed.2d 526 (1989) (requiring arbitration of claim arising under the Securities
Act of 1933); Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96
                                                  III

        State law claims that involve minor disputes are preempted by the RLA. Morales, 894 F.2d

at 746. A state law claim involves a minor dispute when the claim is " "inextricably intertwined' with

the terms and conditions of employment under the collective bargaining agreement"—that is, when

the court must interpret the terms and conditions of the agreement to properly resolve the claim. Id.

at 745. Thus, state law claims that "grow out of the employment relationship can constitute "minor

disputes' under the [RLA], even when the claims do not arise directly from the collective bargaining

agreement itself." Id.

        We find that Hirras's intentional infliction of emotional distress claim grew out of the

employment relationship and therefore is inextricably intertwined with the terms and conditions of

her employment.18 See Calvert v. Trans World Airlines, Inc., 959 F.2d 698 (8th Cir.1992)

(concluding that the RLA preempted an intentional infliction of emotional distress claim). To

properly adjudicate Hirras's claim, the district court would have to construe the collective bargaining

agreement to determine what actions Amtrak was required to take in response to Hirras's complaints

that she was being harassed. See Beard v. Carrollton R.R., 893 F.2d 117, 122 (6th Cir.1989).

Moreover, if Hirras was successful on her claim, "the district court would have to determine [Hirras's]

substantive rights under the collective bargaining agreements in order to fashion an appropriate

remedy."19 Morales, 894 F.2d at 746. Accordingly, we conclude that the district court properly

dismissed the intentional infliction claim for lack of subject matter jurisdiction because the claim is


L.Ed.2d 185 (1987) (requiring arbitration of claims arising under the Securities Exchange Act of
1934 and the civil provisions of RICO); Mitsubishi Motors, 473 U.S. 614, 105 S.Ct. 3346
(requiring arbitration of claim arising under the Sherman Act).
   18
     Hirras alleges that a co-worker harassed her; that Amtrak supervisors tolerated the
harassment and did nothing to stop it; that Amtrak "maintain[ed] a policy, practice, custom or
usage of discriminating against [her] because of her sex ... with respect to compensation, terms,
conditions and privileges of employment and in wages that deprive[d her] of equal employment
opportunities"; and that the harassment "became so unbearable that [she] was forced to take a
leave of absence ... [and] is unable to return to work."
   19
     As the district court correctly found, Hirras's claim and desired remedies implicate provisions
in the collective bargaining agreement relating to "promotion, assignments and displacements,
seniority, sick leave, leave of absence, return from leave of absence or temporary assignment, and
fitness for duty physical examinations."
preempted by the RLA.

                                             IV

      For the foregoing reasons, we AFFIRM the judgment of the district court.
