                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 00-2373
                                  ___________


Lowell Boyd Thacker,                  *
                                      *
                    Appellant,        *
                                      * Appeal from the United States
             v.                       * District Court for the
                                      * Eastern District of Arkansas.
St. Louis Southwestern Railway        *
Company, doing business as Southern *
Pacific Transportation Company,       *
                                      *
                     Appellee.        *
                                 ___________

                            Submitted: March 16, 2001

                                 Filed: July 31, 2001
                                  ___________

Before HANSEN and HEANEY, Circuit Judges, and FENNER1, District Judge.
                           ___________

HEANEY, Circuit Judge.




      1
        The Honorable Gary A. Fenner, United States District Judge, for the Western
District of Missouri, sitting by designation.
      Lowell Boyd Thacker appeals the district court’s2 dismissal of Count II of his
Federal Employer’s Liability Act (FELA) complaint, arguing that it is not preempted
by the Railway Labor Act (RLA). Because Thacker’s claims within Count II are
“minor disputes” within the purview of the RLA, we affirm.3

                                       I. Background

       Thacker began working for the St. Louis Southwestern Railway Company
(“Railroad”) in 1969, and worked there until he was dismissed in March, 1998. During
the period relevant to this appeal he worked as a porter, which involved the general
cleaning of offices and replenishing of supplies. He had an excellent work record. On
July 23, 1992, Thacker slipped on a bolt and injured his right thumb while at work. He
remained an employee of the Railroad while he received treatment for his thumb injury,
but he never returned to work.

      On August 13, 1997, Thacker was instructed to attend a medical examination
and drug screening to determine his fitness for duty, but he failed to do so. The
Railroad arranged for an investigative hearing regarding this matter on September 11,
1997, which Thacker also failed to attend. The Railroad assessed a level 2 disciplinary
penalty against him for noncompliance with its requests.

       On February 26, 1998, the Railroad instructed Thacker to provide updated
medical documentation regarding his thumb condition no later than March 9, 1998, or
risk further disciplinary action. He requested additional time to submit medical records,
and mistakenly believed that he had been granted an extension. He failed to meet the

         2
       The Honorable John F. Forster, Jr., United States Magistrate Judge for the
Eastern District of Arkansas.
         3
             We do not reach Thacker’s other issues on appeal because they are without
merit.

                                             2
March 9 deadline. On March 20, 1998, the Railroad held a disciplinary hearing
regarding Thacker’s failure to provide the requested information on time. The
Railroad assessed Thacker a disciplinary penalty of level 5, resulting in his permanent
dismissal. At the March 20 hearing Thacker became nauseated, fell, and injured his
back and neck while moving to the restroom to vomit.

       Thacker brought a negligence claim against the Railroad under the FELA in
district court. In his second amended complaint Thacker alleged in Count I that the
Railroad was negligent for failing to prevent Thacker’s thumb injury. Count II alleged
that the Railroad was negligent for 1) demanding that Thacker return to Railroad
property for the disciplinary hearing when the Railroad previously had failed to provide
a safe place for Thacker to work; and 2) requiring him to travel eighty miles to attend
the hearing, constituting extreme and outrageous conduct done with the intent to cause
Thacker to suffer severe emotional distress. The court granted the Railroad’s motion
to dismiss Count II because it found that the claim was preempted by the RLA, 45
U.S.C. §§ 151 et. seq.

       Count I was tried before a jury on two occasions in 2000. The first trial ended
in mistrial because the jury could not reach a verdict. The second trial resulted in a
verdict for the plaintiff with a finding of fifty percent contributory negligence, providing
the plaintiff with damages in the amount of $10,658.25. The district court denied
plaintiff’s motions for judgment notwithstanding the verdict and for a new trial.

                                       II. Analysis

       We review the district court’s preemption decision with respect to Count II de
novo. Taggart v. Trans World Airlines, Inc., 40 F.3d 269, 272 (8th Cir. 1994).
Thacker asserts that his negligence claim arising from the disciplinary hearing requires
a factual inquiry into the Railroad’s motives and Thacker’s conduct, issues that are not
governed by the collective bargaining agreement (CBA) and not preempted by the

                                             3
RLA. The Railroad argues in response that the Railroad’s scheduling of the
disciplinary hearing is governed by the CBA, requiring binding arbitration before the
National Railroad Adjustment Board (NRAB).

       In Count II Thacker alleges that the Railroad failed to provide a safe place to
work at the disciplinary hearing because it scheduled the hearing on railroad property,
far from Thacker’s home, knowing that being on Railroad property presented a danger
to Thacker. None of Thacker’s Count II allegations relate to the physical condition of
the premises and the danger they posed to Thacker. Instead, they pertain to the
Railroad’s scheduling decisions for the disciplinary hearing. Accordingly, Thacker’s
complaints are “minor disputes” involving the interpretation of the CBA and are subject
to arbitration under the RLA. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,
252-53 (1994).

       Because the propriety of the disciplinary hearing is a minor dispute subject to
arbitration under the RLA, we affirm the district court.

      A true copy.

             Attest.

                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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