
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1197                             ALBERT A. FLIBOTTE, ET AL.,                               Plaintiffs, Appellants,                                          v.                           PENNSYLVANIA TRUCK LINES, INC.,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Nancy Gertner, U.S. District Judge]                                           ___________________                              _________________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                          and Dowd,* Senior District Judge.                                     _____________________                              _________________________               Malcolm J. Barach for appellants.               _________________               Regina C.  Reardon, with  whom Brian P.  Crowner and  Bray &               __________________             _________________      ______          Reardon, P.C. were on brief, for appellee.          _____________                              _________________________                                  December 10, 1997                              _________________________          _______________          *Of the Northern District of Ohio, sitting by designation.                    SELYA,  Circuit Judge.  Having prevailed before a jury,                    SELYA,  Circuit Judge.                            _____________          plaintiff-appellant Albert  A. Flibotte saw his  apparent victory          turn  to ashes  when the  district  court entered  judgment as  a          matter of law  in favor of defendant-appellee  Pennsylvania Truck          Lines,  Inc. (PTL)  on the  ground that  Flibotte's   claims were          preempted by section 301 of the Labor Management Relations Act of          1947, 29 U.S.C.   185 (1994).  Flibotte beseeches us to reinstate          the jury verdict.  We are unable to do so.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    Flibotte,  a member of Teamsters Local 25, spent almost          three decades in PTL's employ.  This relationship persisted until          PTL terminated  him in 1987 for  his refusal to participate  in a          drug  testing procedure    a  refusal that, under  the applicable          collective bargaining agreement, "constitute[d]  a presumption of          intoxication."   National Master Freight Agreement, Art. 35, Sec.          3  (NMFA).   Local  25  filed a  grievance  on Flibotte's  behalf          pursuant  to the  NMFA and  eventually took  the case  to binding          arbitration.  The arbitrator found that Flibotte's ouster did not          violate  the   collective  bargaining  pact   and  rejected   the          grievance.                    Flibotte subsequently  filed a civil action against PTL          in  a Massachusetts  state court.   In  addition to  a derivative          claim  for loss  of consortium  on behalf  of Mrs.  Flibotte, the          complaint contained counts  for negligence, invasion of  privacy,          impairment  of civil rights,  defamation, negligent infliction of                                          2          emotional  distress,  and  intentional  infliction  of  emotional          distress.   Flibotte  alleged that  PTL  notified a  group of  37          employees, himself included, to report on March 13, 1987, for the          biennial  physical  examination  and  drug  test  required  under          federal  motor  carrier  safety  regulations;  that   he  refused          "because  his  examination  was  not  yet  due  and  because  the          [designated examination site] was rat-infested"; that, within one          week after he boycotted the scheduled test, he  took and passed a          drug  test  administered  by  his  own  physician;  and  that PTL          nonetheless  discharged him  summarily  on March  18,  1987.   He          claimed  that  in   so  doing,  PTL  wrongfully   terminated  his          employment  and,  in  the  bargain,  breached  various  state-law          duties.                    PTL  removed the  case to  the  United States  District          Court for the District of Massachusetts  on dual bases (diversity          of citizenship and  the existence of a federal  question).  After          the usual  preliminaries   including  the denial of  PTL's motion          for summary judgment    the case proceeded to  trial before Judge          Nelson and a jury.  During the ensuing eight-day trial, PTL twice          moved for judgment  as a matter of  law on the ground  of section          301 preemption.   Judge Nelson denied one such motion  at the end          of  the plaintiff's case  and the other  at the close  of all the          evidence.    In due  season,  the  jury  returned a  verdict  for          Flibotte  on three counts    negligence, negligent  infliction of          emotional  distress,  and  intentional  infliction  of  emotional          distress   and awarded him $625,000 in damages.                                          3                    Like the mills of the  gods, the mills of the judiciary          sometimes grind exceedingly slow.  On November 20, 1991, PTL made          a timely motion for judgment as a matter of law, see Fed. R. Civ.                                                           ___          P. 50(b), in which it again  hawked section 301 preemption.   The          motion  sat unresolved  when, in  April of  1992, PTL  sought the          bankruptcy court's  protection under Chapter  11, thus triggering          an  automatic stay of proceedings in the  district court.  See 11                                                                     ___          U.S.C.   362 (1990).  Some seventeen months later, the bankruptcy          court confirmed  a plan of reorganization.   PTL's emergence from          the toils  of bankruptcy  cleared the way  for resumption  of the          district  court proceedings.  By then,  however, Judge Nelson had          become disabled and  a considerable period of time elapsed before          the case was reassigned and a  new jurist, Judge Gertner, took up          the outstanding  motion.   She eventually  granted it,  provoking          this appeal.                    Flibotte's  objections  possess   both  procedural  and          substantive  dimensions.   First, he  argues  that Judge  Gertner          erred when  she purposed to revisit issues  previously decided by          Judge Nelson.  Second, he assails the merits of her determination          that section 301 preempts his  state-law claims.  We address each          of these objections in turn.                                         II.                                         II.                                         ___                                   Law of the Case                                   Law of the Case                                   _______________                    Flibotte's  procedural  objection   has  a  chameleonic          quality.   In  one  iteration,  it  implies  that  Judge  Gertner          improperly made fact-based determinations contrary to  those made                                          4          by her predecessor  and in flagrant disregard of  the truism that          the judge  who actually presides  over a  trial is in  a superior          position  to  make  such determinations.    Without  engaging the          myriad  counter-precedential assumptions  that  are essential  to          this objection,  it suffices to  say that the legal  framework in          which motions  for judgment  as a matter  of law  exist does  not          permit  courts  confronted   with  such  motions  to   engage  in          differential factfinding, see Veranda Beach Club Ltd. Partnership                                    ___ ___________________________________          v.  Western Sur.  Co., 936  F.2d  1364, 1383-84  (1st Cir.  1991)              _________________          (discussing  applicable standards),  and there  is no  indication          here that Judge Gertner disobeyed these guidelines.                    Flibotte's next iteration  of his procedural  objection          is no more  rewarding.  He asserts  that a court is  bound by its          own  precedents,   and  that,   therefore,   Judge  Gertner   was          incompetent  to  revise  Judge  Nelson's  answers  to  the  legal          questions  posed by  the case.    This objection  is an  apparent          effort to  employ the venerable  law of the case  doctrine, which          states  in the  large  that,  unless  corrected by  an  appellate          tribunal, a  legal  decision made  at  one stage  of a  civil  or          criminal  case constitutes  the  law of  the case  throughout the          pendency of  the litigation.   See, e.g., United States  v. Bell,                                         ___  ____  _____________     ____          988 F.2d 247, 250 (1st Cir. 1993); Abbadessa v. Moore Bus. Forms,                                             _________    _________________          Inc., 987 F.2d 18, 22 (1st Cir. 1993).          ____                    This  principle is of  no real assistance  to Flibotte.          Although  temporally  distant  from  each other,  Judge  Nelson's          denial of PTL's motions for  summary judgment and for judgment as                                          5          a matter of law, on the one hand, and Judge Gertner's decision to          grant PTL's post-verdict motion for  judgment as a matter of law,          on the other hand, occurred in the context of a single trial of a          single case in a single court, with no intervening appeal.  Judge          Nelson  and Judge Gertner, therefore, play the same institutional          role for the purpose of this litigation.                    That confluence  of judicial identities  is dispositive          here.   "Under the law  of the case  doctrine, as it  is commonly          understood, it is not improper for a court to depart from a prior          holding if convinced that it  is clearly erroneous and would work          a manifest injustice."  Arizona  v. California, 460 U.S. 605, 619                                  _______     __________          n.8 (1983).  Moreover, it is perfectly appropriate for a judge to          refuse to direct  a verdict, permit the jury to  consider a case,          and thereafter  to grant  judgment  notwithstanding the  verdict.          See Talbot-Windsor  Corp. v.  Miller, 309 F.2d  68, 69  (1st Cir.          ___ _____________________     ______          1962).  Accordingly,  Judge Nelson would have been  free to grant          PTL  the  relief  that  it  sought  in  its  post-verdict  motion          notwithstanding  his  previous rulings;  and  Judge  Gertner, who          stood in his shoes, was at liberty to do the same.  Consequently,          Judge  Gertner did not arrogate unto  herself any undue authority          when  she  entertained  PTL's  renewed  post-verdict  motion  for          judgment as  a matter of  law and reached a  different conclusion          than had her co-equal predecessor.                                         III.                                         III.                                         ____                                Section 301 Preemption                                Section 301 Preemption                                ______________________                    Having found  no procedural  glitch, we  turn to  Judge                                          6          Gertner's decision.   We review a ruling on a motion for judgment          as  a  matter  of  law  de novo,  applying  the  identical  legal          standards that constrain  the district court.   See Colasanto  v.                                                          ___ _________          Life Ins.  Co. of  N. Am.,  100 F.3d  203, 208  (1st Cir.  1996).          _________________________          Accordingly,  "the   evidence  and   all  reasonable   inferences          extractable   therefrom  must  be  examined  in  the  light  most          favorable to the nonmovant  and a [judgment as  a matter of  law]          should  be  granted only  when  the  evidence, viewed  from  this          perspective, is such that reasonable persons could reach but  one          conclusion."  Veranda Beach, 986 F.2d at 1383-84.1                        _____________                                          A.                                          A.                                          __                                 The Legal Landscape                                 The Legal Landscape                                 ___________________                    Read  literally,  section  301  confers  federal  court          jurisdiction  over "[s]uits for violation of contracts between an          employer  and a labor  organization representing employees  in an          industry  affecting  commerce."   Over  the  years,  however, the                                        ____________________               1This  case has  a peculiar  twist.   It appears  that Judge          Gertner, though new to the case,  ruled on the motion without the          benefit of a trial transcript,  and a complete transcript has not          been prepared to  this date.  We  need not probe too  deeply into          the question  of which way  the absence of this  transcript cuts.          In most cases,  a transcript would form  an integral part  of the          court's decisional calculus on a post-verdict motion for judgment          as  a  matter  of law.    Here,  however,  the  critical issue             preemption    embodies  a pure  question  of law  susceptible  to          resolution on the  face of the pleadings (as  supplemented by the          collective bargaining  agreement).  In  ruling on the  motion for          judgment as a matter of law, Judge Gertner hewed to this line and          did  not make  any extraneous  factual  findings or  assumptions.          Because the judge's analysis and  decision did not need to engage          any facts derived from trial testimony, this is the rare  case in          which  the absence  of a  trial transcript  is immaterial  to the          correctness of a ruling on  a post-verdict motion for judgment as          a matter of law.                                          7          Supreme  Court  has  placed  a  heavy  gloss  on  this  language,          beginning  with its  holding that  the  statute empowers  federal          courts  to craft  federal  common  law  reasonably  necessary  to          effectuate the objectives of section 301.  See Textile Workers v.                                                     ___ _______________          Lincoln  Mills,  353  U.S. 448,  451  (1957).    This substantive          ______________          authority to declare federal common law soon formed the basis for          an  emerging jurisprudence of  preemption.  See  Martin v. Shaw's                                                      ___  ______    ______          Supermarkets, Inc.,  105 F.3d  40, 41-42  (1st Cir.)  (recounting          __________________          development of section 301 preemption), cert. denied, 118 S.  Ct.                                                  _____ ______          69 (1997).   Today, labor-law preemption casts  a relatively wide          net.   Thus,  section  301  preempts a  state-law  claim "if  the          resolution   of  [that]  claim  depends   on  the  meaning  of  a          collective-bargaining  agreement."  Lingle v. Norge Div. of Magic                                              ______    ___________________          Chef, Inc., 486 U.S. 399, 405-06 (1988).          __________                    This rule is  not without limitations.   The Court  has          cautioned  that "purely  factual  questions  about an  employee's          conduct or  an employer's  conduct and motives  do not  require a          court   to   interpret  any   term  of   a  collective-bargaining          agreement."  Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 262                       _______________________    ______          (1994) (citation and internal quotation marks omitted).   It also          has warned that  section 301 "cannot be read  broadly to pre-empt          nonnegotiable  rights conferred  on  individual  employees  as  a          matter  of state  law."  Livadas  v. Bradshaw, 512  U.S. 107, 123                                   _______     ________          (1994).   Even  so, the  basic  test remains  that prescribed  by          Lingle and  its progeny:   that section 301 preempts  a state-law          ______          claim, whether founded  upon the state's positive  or common law,                                          8          if  a court,  in passing  upon the  claim,  would be  required to          interpret  the collective  bargaining  agreement.   See  id.   In                                                              ___  ___          practice, this test  boils down to whether the asserted state-law          claim plausibly can be said to depend upon the meaning of  one or          more provisions within the collective bargaining agreement.                    A state-law claim  can "depend" on  the "meaning" of  a          collective bargaining agreement  in two ways.  First,  a claim so          qualifies  if  it  alleges conduct  that  arguably  constitutes a          breach of a duty that  arises pursuant to a collective bargaining          agreement.  See United Steelworkers  v. Rawson, 495 U.S. 362, 369                      ___ ___________________     ______          (1990) ("[A]  state-law tort action  against an  employer may  be          pre-empted by   301 if the duty to the employee of which the tort          is  a violation is  created by a  collective-bargaining agreement          and without existence independent of the agreement.").  Second, a          claim  so  qualifies if  its resolution  arguably hinges  upon an          interpretation  of  the  collective bargaining  agreement.    See                                                                        ___          Allis-Chalmers Corp. v. Lueck, 471  U.S. 202, 220 (1985) (finding          ____________________    _____          section 301  preemption "when resolution of a  state-law claim is          substantially dependent upon analysis of the term of an agreement          made between the parties  in a labor contract").   If a state-law          claim  depends  on  the  meaning  of  the  collective  bargaining          agreement  in either  of these  ways    that  is, under  Rawson's                                                                   ______          "duty" rubric or under Allis-Chalmers's "interpretation" rubric                                   ______________          it is preempted.                                          B.                                          B.                                          __                                      The Merits                                      The Merits                                      __________                                          9                    At trial, Flibotte prevailed on three state-law claims:          negligence,  negligent  infliction  of  emotional  distress,  and          intentional infliction of  emotional distress.  Our review of the          pleadings,  supplemented by the  items that Flibotte  included in          the record  appendix on appeal (such as the collective bargaining          agreement)  confirms that  none of  these  three claims  involves          rights that are made non-negotiable  under state law and that all          of  them are preempted  by section 301.   For  clarity's sake, we          begin  with   the  negligence  claims  and  then   focus  on  the          intentional infliction claim.                    1.    Negligence.   If Flibotte's  two negligence-based                    1.    Negligence.                          __________          claims are to  escape preemption, he must establish  that they do          not  spring  from  duties imposed  by  the  collective bargaining          agreement, but,  rather, that PTL has acted  "in a way that might          violate  the duty  of reasonable  care  owed to  every person  in          society."  Rawson, 495 U.S. at 371.  This would be  no mean feat.                     ______          Even assuming, favorably to Flibotte, that PTL allegedly breached          duties   derived  from  a  source  extrinsic  to  the  collective          bargaining agreement,  the  resolution of  the negligence  claims          nonetheless depends  upon the interpretation  of that  agreement.          Consequently,  those claims are preempted  under section 301.  We          explain briefly.                    Flibotte's damage  claim, as  framed in  his complaint,          links  both  his  economic  losses  and  his  emotional  distress          directly  to his  termination.    In order  to  prevail on  these          claims, he must prove that PTL wrongfully discharged him.  If PTL                                          10          acted within its contractual rights  in severing the tie, then it          could not have breached its general duty of care.  It is clear to          us that we  cannot resolve this question, involving the propriety          of  Flibotte's  firing,  without  substantial  inquiry  into  the          intricacies of the  collective bargaining agreement.   After all,          the appellant concedes that  PTL cashiered him because  he failed          to   appear  for  a  scheduled  drug  test,  and  the  collective          bargaining agreement in force here   the NMFA    governs both the          frequency  of testing, see  NMFA Uniform Testing  Procedure, Sec.                                 ___          IIB, and the  consequences of a failure to take  an offered test,          see NMFA, Art.  35, Sec. 3.  Hence, it is impossible to determine          ___          PTL's  negligence   without   inquiring  into   its  rights   and          obligations as described by the collective bargaining  agreement.          This mandatory consultation separates the instant case from those          that raise purely factual  questions and thus begets  section 301          preemption.                    If more were needed   and we do  not think that it is            we   also  would  note  that  Flibotte's  negligence  claims  are          preempted to the  extent that they stem from  his contention that          the conditions of the requested test were unsanitary and violated          the  employer's duty to  provide a suitable  hygienic environment          for the  examination.   This  duty  derives from  the  employment          relationship as  defined in the collective  bargaining agreement,          and as such,  it cannot form the basis for a  state-law claim.  A          plaintiff  cannot  skirt  section 301  preemption  by  the simple          expedient   of   recharacterizing   an   employer's   substandard                                          11          performance of duties that devolve  upon it pursuant to the terms          of the  collective bargaining agreement  as a tort.   See Rawson,                                                                ___ ______          495 U.S. at 371-72.                    2.  Intentional Infliction of Emotional Distress.  This                    2.  Intentional Infliction of Emotional Distress.                        ____________________________________________          leaves only the  appellant's claim for intentional  infliction of          emotional distress.   To prevail  on that claim, Flibotte  had to          prove that PTL (1) intended  to inflict emotional distress by (2)          undertaking actions that were extreme and outrageous, thereby (3)          causing emotional  distress which (4) was severe.   See Wagenmann                                                              ___ _________          v. Adams,  829 F.2d 196, 213-14  (1st Cir. 1987); Agis  v. Howard             _____                                          ____     ______          Johnson Co., 355 N.E.2d 318-19 (Mass. 1976).  Under Massachusetts          ___________          law, "extreme  and outrageous  conduct" is  behavior that is  "so          outrageous  in character,  and so  extreme  in degree,  as to  go          beyond  all possible  bounds of  decency, and  to be  regarded as          atrocious,  and utterly  intolerable in  a  civilized community."          Foley v. Polaroid Corp., 508 N.E.2d 72, 82 (Mass. 1987).          _____    ______________                    PTL's  rights  and  obligations  under  the  collective          bargaining agreement are obviously central not only to an inquiry          into PTL's  intentions, but also  to an inquiry into  whether PTL          conducted itself in a sufficiently outrageous manner to give rise          to  liability  under  state  tort  law.   It  is  a  well-settled          principle that  a party cannot be liable if  it does no more than          "insist upon [its] legal rights in a permissible way, even though          [it]  was well  aware that  such insistence  is certain  to cause          emotional distress."  Restatement (Second)  of Torts,   46 cmt. g          (1965); see Rush  v. United Technologies, 930 F.2d  453, 456 (6th                  ___ ____     ___________________                                          12          Cir. 1991).  If PTL was within its rights to require  Flibotte to          take a drug test at the designated site and to terminate him when          he  refused to  do  so,  a claim  for  intentional infliction  of          emotional distress cannot lie.2  Because the  resolution of these          issues necessitates  examination  of  the  collective  bargaining          agreement, the claim is preempted.   See Allis-Chalmers, 471 U.S.                                               ___ ______________          at 213; see also  Jackson v. Liquid Carbonic Corp., 863 F.2d 111,                  ___ ____  _______    _____________________          119 (1st Cir.  1988) (upholding section 301 preemption  in a drug          testing case on  the ground, inter alia, that  "[o]nly by probing                                       _____ ____          the contours  of the  [collective bargaining  agreement] can  one          answer  whether  the  [drug  testing]  program  was  legitimately          implemented").                                         IV.                                         IV.                                         ___                                      Conclusion                                      Conclusion                                      __________                    We  are not without sympathy for Flibotte, who obtained          a large verdict many years ago, then  was plunged into a longeval          legal limbo,  and ultimately saw  his prized damage  award vanish          when a  new judge came on the scene.    It is understandable that          Flibotte  views  the   newly  arrived  judge  as   the  juridical          equivalent  of the Grinch who stole  Christmas, but in actuality,          the judge did  no more  than her  duty.  As  she recognized,  the          resolution of  each of  Flibotte's state-law  claims requires  an                                        ____________________               2It bears repeating that an  arbitrator has already ruled in          PTL's favor on the propriety of Flibotte's discharge, and that an          historic  reason for section 301's extensive preemptive scope was          "to ensure  that, when  developed, the resultant  rules would  be          applied  through  the  grievance procedures  agreed  upon between          unions and  management."  Jackson  v. Liquid Carbonic  Corp., 863                                    _______     ______________________          F.2d 111, 114 (1st Cir. 1988).  This reason remains valid today.                                          13          examination of the  terms of the collective  bargaining agreement          and, as  a result,  the claims are  preempted under  section 301.          Because the district court correctly divined and applied the law,          we can go no further.          Affirmed.          Affirmed.          ________                                          14
