In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2349

Robert Brown,

Plaintiff-Appellant,

v.

Illinois Central Railroad Company,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 4836--Charles P. Kocoras, Judge.

Argued January 22, 2001--Decided June 20, 2001



  Before Bauer, Kanne, and Evans, Circuit
Judges.

  Bauer, Circuit Judge. Robert Brown,
aided by the Equal Employment Opportunity
Commission ("EEOC") as amicus curiae,
appeals the district court’s dismissal of
a claim which he brought under the
Americans with Disabilities Act ("ADA")
42 U.S.C. sec. 12101, et seq. for lack of
subject-matter jurisdiction. The district
court found that Brown’s claim was
precluded by the mandatory arbitration
provisions of the Railway Labor Act
("RLA") 45 U.S.C. sec. 151, et seq. For
the reasons set forth below, we affirm.

BACKGROUND

  Illinois Central Railroad Company ("IC")
is a "carrier" by rail under the RLA and
an "employer" under the ADA headquartered
in Chicago, Illinois. IC’s operations are
divided into several departments, which
in turn are subdivided into various
groups of employees, or "crafts." Each
craft has its own separate identity, with
its own collective bargaining agreement
("CBA"), work rules, and seniority. Brown
has worked in IC’s Transportation
Department in the
trainman/brakeman/switchman ("trainman")
craft/1 since 1979. IC’s trainmen are
represented by the United Transportation
Union ("UTU"), which has entered into a
CBA with IC on their behalf.

  IC has two types of trainman positions--
regularly scheduled, and "guaranteed
extra board" ("GEB"). GEB trainmen fill
in for absent regular trainmen and allow
the railroad to cope with unexpected
surges in operations (such as the
unscheduled arrival of trains in the
yard) which create a need for extra
workers on short notice. Prior to May of
1995, IC had two types of GEB positions--
"yard" and "road." Trainmen who were
assigned to yard jobs worked in a
prescribed geographical area and had
restricted starting times. Yard GEBs had
two assigned days off per week, while
road GEBs had no assigned days off. In
May of 1995, IC eliminated the yard GEB
position. Work that had previously been
performed by yard GEBs has since been
performed by road GEBs, like Brown.

  Road GEB trainmen at IC are called to
work according to the following
procedure: GEB trainmen are listed on a
"call board," with the trainman who has
been without a job assignment for the
longest period of time at the top,
followed in descending order by each
trainmen who has worked more recently.
When a fill-in worker is needed, an IC
crew dispatcher calls the GEB trainman at
the top of the list and assigns him to
work. While he is working, his name is
taken off of the call board. When the
trainman finishes his assignment, he
"marks back up," meaning that his name is
put back on the call board, this time at
the bottom of the list. As those above
him are called to jobs, their names are
taken off the call board, and the worker
at the bottom moves up the board until he
is again at the top, making him eligible
to be called to work when the need
arises. This cycle repeats itself
continually, constantly changing the
order of the trainmen on the list.
  Regularly scheduled (non-GEB) trainmen
have a specific work schedule and
location. They work six days per week on
a regular basis, and have one assigned
day off per week. By contrast, GEB
trainmen do not have assigned days off.
The CBA requires IC to staff the GEB with
a sufficient number of employees so as to
permit both regular and GEB employees to
have "reasonable layoffs," but the CBA
does not define what constitutes a
"reasonable" layoff. Trainmen with the
most seniority at IC fill the regular,
six day per week positions. Since it
abolished all yard jobs in May of 1995,
IC has taken the position that GEB
employees be available for work seven
days per week, 24 hours a day (subject to
the federal hours of service laws). The
CBA guarantees GEB trainmen payment for
each day they are on GEB status and
available to work,/2 regardless of
whether they actually work. However,
Brown disputes whether seven day per
week, 24 hours a day availability is a
requirement of the GEB trainman position.

  Brown began working for IC in October of
1978, and transferred to the trainman
craft in May of 1979. Brown was qualified
as a conductor in May 1980, and worked in
that position for approximately eight
years. At some point during his
employment, Brown was diagnosed by his
personal physician as having
schizoaffective disorder. He was first
hospitalized for this condition in 1988,
suffering from depression, paranoia, and
suicidal feelings. Schizoaffective
disorder can interfere with an
individual’s ability to learn new
concepts, and, according to the testimony
of one of Brown’s treating physicians, it
can cause hallucinations, disorganized
thinking, delusions, obsessions, social
withdrawal, and depressive episodes.

  In November of 1989, Brown’s personal
physician informed IC that Brown’s
psychiatric condition rendered him unable
to withstand the stress associated with
the supervisory tasks performed by
conductors or foremen, and limited him to
"helper only" jobs, such as brakeman or
switchman. The parties dispute whether IC
immediately accommodated Brown’s
psychiatric condition, however they agree
that since at least April of 1993 IC has
allowed Brown to work only "helper"
trainman’s jobs. This was done while
Brown continued to work off of the call
board. If a conductor job opened up while
Brown was at the top of the list, he
would decline the job and it would be
assigned to the next trainman on the
list. Prior to the reclassification of
yard trainman jobs in May of 1995, Brown
held a GEB yard job which required him to
work various shifts five days per week,
with assigned days off on Mondays and
Tuesdays. IC found Brown medically
qualified to perform this job. Beginning
in June 1995, after assigned rest days
were eliminated for all GEB positions,
Brown generally would lay off sick on a
routine basis two days per week. For
approximately one year, IC made no
objection to this practice. During this
time, Brown’s work was generally
acceptable and he was never disciplined
for poor attendance.

  In February of 1996, several months
after all Chicago GEB yard assignments
were eliminated and replaced with road
crews, John Kay became Superintendent of
IC’s Chicago area operations. Starting
the following May, Kay analyzed employee
work records which showed the number of
days that individual employees were
laying off work. After concluding that
several employees were laying off
excessively, Kay met with several
trainmen, including Brown, to discuss
their attendance. Kay insisted that Brown
be available for work seven days a week.
At a meeting on June 11, 1996, Brown gave
Kay a note from his physician restricting
him to working a maximum of five days a
week due to his disorder. IC did not
provide Brown the accommodation he
requested, and it medically disqualified
him from employment on June 13, 1996 on
the ground that he would not be available
to work seven days per week as required
by the GEB trainman position.

   Brown remains on IC’s seniority list
and according to IC he is eligible to
return to work if his restrictions are
lifted or GEB requirements change. At the
time of his disqualification, all regular
(6 day per week) trainmen positions were
held by trainmen with higher seniority
than Brown. However, by the time this
case was litigated in the district court,
some of those positions were held by
employees with less seniority than Brown.
At the time of his disqualification,
Brown ranked 216th out of 226 on the
seniority list, meaning that only 10
trainmen had less seniority than Brown.

  UTU urged IC to accommodate Brown, and
after IC medically disqualified Brown,
UTU pursued a labor grievance on his
behalf contending that his
disqualification violated the CBA and
that he was entitled to a reasonable
accom-modation under the ADA. The Public
Law Board denied Brown’s CBA claims and
declined to address his ADA claims,
accepting IC’s argument that it lacked
the statutory authority to resolve such
claims.

  After filing a discrimination charge
with the EEOC and receiving a Notice of
Right to Sue, Brown filed suit under the
ADA, claiming that he was qualified to
work as a GEB trainman with the
reasonable accommodation of being allowed
to lay off two days per week, and that IC
violated the ADA by disqualifying him
from work. Brown was examined by Dr.
Alexander Obolsky, plaintiff’s expert
witness, who opined that it was not
necessary that Brown always work exactly
five days, followed by two consecutive
days off; rather, Brown could work as few
as three or as many as to six or seven
days in a row (as his condition allowed),
so long as he worked five days out of
every seven on average. IC moved for
summary judgment, arguing that Brown’s
schizoaffective disorder is not a
"disability" under the ADA, that Brown is
not a "qualified individual," and that
the accommodation that Brown proposed was
not "reasonable." The district court
denied the motion, finding that genuine
issues of material fact existed as to
these issues. IC then moved to dismiss,
arguing that because the resolution of
Brown’s claim required the court to
construe various provisions of the CBA,
the RLA precluded Brown from bringing his
claim in court, and therefore the
district court lacked subject-matter
jurisdiction over the claim. Accepting
IC’s arguments, the district court
dismissed Brown’s ADA claim, and Brown
has appealed.

DISCUSSION

  The sole issue presented for review is
whether the mandatory arbitration
provisions of the RLA preclude Brown from
bringing his ADA claim in federal court,
thereby stripping the district court of
subject-matter jurisdiction. The district
court answered this question in the
affirmative and granted IC’s motion to
dismiss for lack of subject-matter
jurisdiction. We review the district
court’s decision on this issue de novo.
See Monroe v. Missouri Pacific R.R. Co.,
115 F.3d 514, 516 (7th Cir. 1997)
(citation omitted).

 The RLA promotes stability in labor-
management relations by "providing a
comprehensive framework for resolving
labor disputes" in the railroad industry.
Hawaiian Airlines, Inc. v. Norris, 512
U.S. 246, 252 (1994) (citing Atchison,
Topeka & Santa Fe Ry. Co. v. Buell, 480
U.S. 557, 562 (1987)); see also 45 U.S.C.
sec. 151a. Specifically, the RLA
establishes a mandatory arbitral
mechanism for "the prompt and orderly
settlement" of two classes of disputes--
"major disputes" and "minor disputes."
See 45 U.S.C. sec. 151a. Major disputes
"relate to the formation of collective
bargaining agreements or efforts to
secure them." Hawaiian Airlines, 512 U.S.
at 252 (citation and internal quotation
omitted). Minor disputes, by contrast,
"gro[w] out of grievances or out of the
interpretation or application of
agreements covering rates of pay, rules,
or working conditions[,]" 45 U.S.C. sec.
151a, and "involve controversies over the
meaning of an existing collective
bargaining agreement in a particular fact
situation." Hawaiian Airlines, 512 U.S.
at 253 (citation omitted). All minor
disputes "must be adjudicated under RLA
mechanisms, which include an employer’s
internal dispute-resolution procedures
and an adjustment board established by
the unions and the employer." Monroe, 115
F.3d at 516; 45 U.S.C. sec. 184. A
plaintiff’s claim is properly
characterized as a minor dispute (and is
therefore subject to mandatory and
exclusive arbitration under the RLA) when
the resolution of the plaintiff’s claim
requires interpretation of the CBA. See
Monroe, 115 F.3d at 519; Coker v. Trans
World Airlines, Inc., 165 F.3d 579, 583
(7th Cir. 1999) (stating that "[t]he
distinguishing feature of a minor dispute
is that the dispute can be conclusively
resolved by interpreting the existing
CBA." (citation and internal quotation
omitted)). Therefore, even if Brown’s
claim is grounded upon rights which stem
from some source other than the CBA (such
as state law), the claim will be
preempted if it cannot be adjudicated
without interpreting the CBA, or if it
can be "conclusively resolved" by
interpreting the CBA. See Hawaiian
Airlines, 512 U.S. at 261-62;
Consolidated Rail Corp v. Ry. Labor
Executives’ Ass’n, 491 U.S. 299, 305
(1989).

  The ADA prohibits employment
discrimination against "qualified
individual[s] with disabilit[ies]." 42
U.S.C. sec. 12112(a). Under the ADA,
prohibited discrimination includes "not
making reasonable accommodations to the
known physical or mental limitations of
an otherwise qualified individual with a
disability . . . ." 42 U.S.C. sec.
12112(b) (5)(A). All covered entities
must provide a reasonable accommodation
to qualified individuals with disability
unless they can demonstrate that such
accommodation would impose an "undue
hardship" on the operation of their
business. See id. The ADA is a
comprehensive statute designed to end
disability discrimination in the
workplace in all industries, and it does
not exempt the railroad and airline
industries from its reach.

  IC argues, and the district court
agreed, that the resolution of Brown’s
ADA claim requires interpretation
ofvarious provisions of the CBA. First,
IC notes that in attempting to establish
that he is a "qualified individual with a
disability," Brown will have to
demonstrate that he is able to perform
the "essential functions" of the job at
issue, with or without a reasonable
accommodation. Since Brown concedes that
his schizoaffective disorder renders him
unable to work seven days a week on a
consistent basis (and does not argue that
a reasonable accommodation would remove
this impairment), in order to prevail on
his claim he will need to show that being
consistently available for work seven
days a week is not an "essential
function" of the GEB trainman position.
However, IC contends that the CBA
forecloses Brown from making any such
showing because it guarantees GEB
Trainman payment for seven days per week
regardless of the number of days that
they actually work, implicitly requiring
seven day per week availability as a quid
pro quo for this salary guarantee./3
Brown challenges this interpretation of
the CBA, and argues that no CBA provision
explicitly establishes seven day per week
availability as a requirement of the GEB
trainman position./4 IC argues that the
conflict between the parties on this
issue turns on a dispute regarding the
interpretation of the CBA, and as such it
must be arbitrated pursuant to the RLA.

  Moreover, IC argues that the district
court could not have determined whether
Brown’s requested accommodation was
"reasonable" without interpreting other
disputed provisions of the CBA. For
example, Section 5, Article 3 of the
Trainmens’ schedule agreement lists
various circumstances under which GEB
trainmen should be allowed to lay off
from work and provides that "for good
reason . . . an employee should be
permitted to be absent from work within
reasonable limits." It also notes that,
while "the company is warranted in
controlling the privilege of laying off,"
"it should do so reasonably." This
invites the question of whether the CBA
right to "reasonable layoffs" encompasses
the right to layoff periodically (and
regularly) as needed, even if that means
laying off for up to two days per week.
IC contends that the district court could
not determine whether Brown’s requested
accommodation was "reasonable" (an
essential element of his ADA claim)
without answering this question.

  Further, IC points to Section 2, Article
55 of the Trainmens’ Schedule Agreement
("Article 55"), which provides:

[w]hen established runs are changed by
advancing or retarding the earliest
listing time one hour or more, or a
change is made in the number of days the
run is bulletined to operate each week, .
. . it will be considered a new run and
bulletined accordingly.

  Applying this provision, IC argues that
granting Brown the accommodation he seeks
would amount to creating a new position
(namely, a GEB position requiring less
than 7 days of availability per week)
which IC would be obligated to place up
for bidding among the other trainmen. IC
maintains that allowing Brown the right
to the regular layoffs he requests
without first offering this privilege to
trainmen with greater seniority would
flout both Article 55 and the general
seniority provisions established under
the CBA. Such an accommodation would be
unreasonable as a matter of law, because
"the ADA does not require disabled
individuals to be accommodated by
sacrificing the collectively bargained,
bona fide seniority rights of other
employees." See Eckles v. Consolidated
Rail Corp., 94 F.3d 1041, 1051 (7th Cir.
1996). Therefore, IC argues that the
merits of Brown’s ADA claim depend upon
an interpretation of the CBA (i.e., that
an interpretation of the CBA will
"conclusively resolve" the claim), and
consequently, that the claim is a "minor
dispute" which is preempted/precluded by
the RLA. The district court accepted
these arguments.

  Brown counters that there is nothing in
the CBA that requires seven day per week
availability, so there is no need to
interpret the CBA when determining the
"essential functions" of the GEB trainman
position for ADA purposes. He also denies
that granting him the accommodation he
seeks would create a new position and
violate the CBA by infringing on the
seniority rights of other workers./5 In
support of this, Brown notes that the
Guaranteed Extra Board operates in a
"singularly non-seniority manner";
workers are called off the call board for
work in the order that their names appear
on board, which in turn is determined
strictly by when each worker "marked back
up." Consequently, the order of the
trainmen on the call board changes
constantly without regard to the CBA’s
seniority provisions. Therefore, Brown
contends that if he were permitted to lay
off in the manner he requests, he would
not receive rights or privileges denied
to other GEB trainmen, thereby creating a
new position and implicating the CBA’s
seniority provisions. Rather, he would
merely delay his own opportunity to work
off of the call board, and would open up
a job for the next trainman on the board.
Brown asserts that causing a fellow
worker to jump ahead one space on the
call board and to perform work that he
was already slated to perform a bit
earlier than he had planned does not in
any way change the operation of the call
board or infringe on the seniority rights
of other trainmen. In addition, Brown
claims that the fact that he actually
used this requested method of
accommodation for a year before his
disability-based disqualification and
received no complaints from either the
union, the railroad, or other workers
proves that it did not violate the CBA’s
seniority provisions.

  While we do not accept all of IC’s
arguments, we agree that the resolution
of Brown’s ADA claim depends in one
crucial respect upon interpretation of
the CBA. The CBA expressly states that
"when a change is made in the number of
days the run is bulletined to operate
each week, it will be considered a new
run and bulletined accordingly."
Therefore, it seems quite possible that
the accommodation that Brown seeks would
create a new position that is subject to
bidding under the CBA. Therefore,
allowing Brown to lay off in the manner
that he requests without first offering
the same layoff privileges to more senior
trainmen might very well violate the
seniority system established by the CBA.
This seems particularly likely given that
Brown requests regular layoffs of up to
two days per week, and the regular (non-
GEB) trainman position (which at the time
of Brown’s disqualification was held
exclusively by trainmen with greater
seniority than Brown) has only one
assigned day off per week. Moreover, and
most important for our purposes, the
determination of whether or not Brown’s
requested accommodation would violate the
seniority provisions of the CBA will
potentially be dispositive of Brown’s ADA
claim, because requested accommodations
which would interfere with the bona fide
seniority rights of other employees are
unreasonable as a matter of law, and not
mandated by the ADA./6 See Eckles, 94
F.3d at 1051. Therefore, the adjudication
of Brown’s ADA claim cannot go forward
until Article 55 and the seniority
provisions of the CBA are interpreted,
and the court’s interpretation of those
provisions could conclusively resolve
Brown’s claim, making it a "minor
dispute" under the RLA. The fact that GEB
trainmen are called to work from the call
board in chronological order rather than
according to seniority does not change
this fact. The important question is not
how work is assigned among GEB trainmen,
nor how Brown’s requested layoffs would
affect the chronology of trainmen assign
ments. Rather, the question raised by IC
is whether allowing Brown to lay off as
he requests would create for Brown a GEB
trainman position entailing fewer regular
hours per week than the standard GEB
trainman position, therefore creating a
new position under Article 55 of the
CBA./7

  However, even though Brown’s ADA claim
cannot be resolved without interpreting
the CBA, it is not immediately clear
whether this fact alone will prelude him
from bringing the claim in federal court.
Amicus EEOC argues that while the RLA’s
mandatory arbitration provisions strip
courts of jurisdiction to adjudicate
state law claims whose resolution depends
upon an interpretation of a CBA, see
e.g., Hawaiian Airlines, 512 U.S. at 261-
63 (applying Lingle v. Norge Division of
Magic Chef, Inc., 486 U.S. 399 (1988)),
they do not as a matter of course
preclude similar claims brought under a
federal statute. Unlike cases involving
the RLA’s preemption of state law,
Brown’s case forces us to decide whether
the RLA precludes a claim brought under
another federal statute, and this choice
"requires an analysis of both [federal
statutes], to see if they are indeed
incompatible or if they can be
harmonized, and if they are incompatible
to decide which one Congress meant to
take precedence." Coker, 165 F.3d at 583-
84 (citations omitted). Therefore,
according to the EEOC, the district court
applied the wrong analysis when it
determined that Brown’s ADA claim was
barred simply because it could be
characterized as a "minor dispute,"
rather than carefully analyzing the two
federal statutes at issue to determine
what effect Congress intended each to
have upon the other. Further, the EEOC
asserts that the district court erred in
relying on cases involving the RLA’s
preemption of state law claims.

  We do not agree that the district court
applied the wrong analysis when deciding
Brown’s claim. First, the district court
was aware that its task was to analyze
the ADA and the RLA "to determine if they
are incompatible or if they can be
harmonized," and the court made it clear
that its holding was an attempt to
harmonize the two statutes (or to give
them simultaneous effect). The district
court thus applied the proper preclusion
standard, and did not decide the case
entirely by resorting to preemption
standards. Second, we do not find that
cases addressing the RLA’s preemption of
state law claims are wholly irrelevant to
the cases like Brown’s which involve the
RLA’s potential preclusion of a claim
brought under another federal statute.
While the two types of cases implicate
some different concerns, see Coker, 165
F.3d at 583 (citations omitted) (stating
that, unlike preemption, "the question of
whether one federal law takes precedence
over another does not implicate the
Supremacy Clause"), we find the
preemption question sufficiently similar
to the preclusion question to make the
analysis employed in the RLA preemption
cases applicable here. See Saridakis v.
United Airlines, 166 F.3d 1272, 1276 (9th
Cir. 1999) (stating that "the preemption
doctrine per se does not govern questions
relating to the compatibility of two of
more federal laws," but noting that
"[l]ike the preemption question, [the
preclusion] inquiry centers on
congressional intent," and applying RLA
preemption cases like Hawaiian Airlines
in its preclusion analysis); Felt v.
Atchison, Topeka, & Santa Fe Ry. Co., 60
F.3d 1416, 1418-19 (9th Cir. 1995)
(same); see also Schiltz v. Burlington
Northern R.R., 115 F.3d 1407, 1415 (8th
Cir. 1997) (relying on RLA preemption
standards in holding that the RLA
precluded a plaintiff-employee’s ADEA
claim which was "inextricably
intertwined" with provisions of a CBA
outlining employees seniority rights);
Fry v. Airline Pilots Ass’n, Int’l, 88
F.3d 831, 836 (10th Cir. 1996) (ruling
that under current Supreme Court
jurisprudence "the threshold question
remains whether resolution of the federal
and state law claims of the plaintiffs
requires interpretation or application of
the CBAs." (citations omitted) (emphasis
supplied)); cf. Hawaiian Airlines, 512
U.S. at 259 n.6 (applying Buell, 480 U.S.
557 (1987), an RLA preclusion case, in
the preemption context and stating that
the fact that Buell was a preclusion case
"does not rob Buell of its force in [the
preemption] context" because "principles
of federalism demand no less caution in
finding that a federal statute pre-empts
state law") (citation omitted). The
standard established for the RLA’s
preemption of state law will not by
itself conclusively resolve the question
of whether the RLA precludes another
federal claim, because the latter
question requires courts first to analyze
the two federal statutes in an effort to
ascertain Congressional intent.
Nevertheless, the RLA preemption standard
remains relevant to the preclusion
inquiry, and we find that the preemption
standard should govern in a preclusion
case unless the analysis of the two
federal statutes clearly suggests
otherwise.
  Moreover, an examination of the ADA’s
language and legislative history reveals
no clear congressional intent to override
the RLA’s requirement that minor disputes
be adjudicated exclusively through the
RLA’s arbitration machinery. The EEOC
notes that in enacting the ADA, Congress
recognized that while the terms of a CBA
"could be relevant . . . in determining
whether a given accommodation is
reasonable . . . the agreement would not
be determinative on the issue." H.R. Rep.
No. 101-485, pt. 2 at 63 (1990) ("H.R.
Rep."), reprinted in 1990 U.S.C.C.A.N.
303, 345; see also S. Rep. No. 101-116, at
32 (1989) ("S. Rep."). In addition, the
EEOC points to similar language in the
ADA’s House and Senate Reports stating
that "if the [CBA] includes job duties,
it may be taken into account as a factor
in determining whether a given task is an
essential function of the job." S. REP.
at 32; see also H. R. Rep. at 63./8
Relying on this language, the EEOC
maintains that Congress expressly
contemplated that courts would consider
the relevant provisions of a CBA in
adjudicating ADA claims, and argues that
this evidences Congress’ intent that the
ADA take precedence over the RLA’s
provisions providing for the mandatory
and exclusive arbitration of all disputes
requiring the interpretation of CBAs.
Moreover, as further support for this
conclusion, the EEOC notes that, unlike
ERISA, the ADA contains no provision
stating that it was not meant to "alter,
amend, modify, invalidate, impair, or
supercede any law of the United States .
. . or any rule or regulation issued
under any such law." See 29 U.S.C. sec.
1144(d). We have found such language
sufficient to preserve the RLA’s
exclusive jurisdiction over minor
disputes brought under ERISA, see Coker,
165 F.3d at 584, and the EEOC concludes
from the absence of a similar provision
in the ADA that we should reach the
opposite conclusion here. In addition,
the EEOC relies on a portion of the ADA’s
legislative history providing that an
employer’s "obligation to comply with
[the ADA] is not affected by any
inconsistent term of any collective
bargaining agreement to which it is a
party" because "an employer cannot use a
collective bargaining agreement to
accomplish what it otherwise would be
prohibited from doing under this Act."
H.R. REP. at 63; see also S. REP. at 32.
Finally, the EEOC notes that the ADA is a
comprehensive Act intended to determine
certain personal rights for workers in
all industries, and that it does not
expressly exempt the railroad industry
from its reach as do certain other
statutes. See, e.g., 29 U.S.C. sec.
213(b)(2). However, we do not find that
any of this amounts to a clearly
expressed Congressional intent to
override any requirement of the RLA. The
passages from the ADA’s legislative
history quoted above are not inconsistent
with the standard rule regarding the
RLA’s preemption or preclusion of minor
disputes. It has long been established
that "not all cases which tangentially
touch collective bargaining agreements
call for . . . preemption." Monroe, 115
F.3d at 519 (quoting Loewen Group Int’l,
Inc. v. Haberichter, 65 F.3d 1417, 1423
(7th Cir. 1995). "When the meaning of
contract terms is not the subject of
dispute, the bare fact that a collective-
bargaining agreement will be consulted in
the course of state-law litigation
plainly does not require the claim to be
extinguished." Loewen, 65 F.3d at 1421
(quoting Livadas v. Bradshaw, 512 U.S.
107, 124 (1994)). Therefore, the mere
fact Congress anticipated that courts
could "look to" (or "consider") the
provisions of a CBA in deciding an ADA
claim does not imply that Congress
intended to override the traditional
preemption/preclusion standards under the
RLA. (This is particularly true given
that the parties to an ADA claim often
might not even dispute the interpretation
of the CBA provisions at issue.)
Moreover, as has been noted, under the
established RLA preemption/ preclusion
rule, the RLA will not bar a plaintiff
from bringing an independent state or
federal claim in court unless the claim
could be "conclusively resolved" by the
interpretation of a CBA (that is, unless
the interpretation of some provision(s)
of the CBA could be dispositive of the
plaintiff’s claim). Since the provisions
of a CBA are relevant but not dispositive
in determining whether a proposed
accommodation is reasonable or whether a
particular job function is an "essential
function" under the ADA, it could be
argued that a court’s consideration of
CBAs for such purposes in general would
not transform the claim into a minor
dispute subject to preclusion by the
RLA./9 However, when the heart of the
dispute between the parties is a
disagreement over the interpretation of
some part of a CBA, the resolution of
which could by itself resolve the claim,
the claim would be precluded by the RLA
under the traditional rule. Nothing in
the text or legislative history of the
ADA clearly overturns this rule, and we
find the mere absence of language in the
Act exempting railroads from its reach or
stating that it was not meant to alter
prior laws insufficient to do so. Without
clearer guidance from Congress, we must
conclude that Congress did not intend for
the ADA to displace the RLA’s mandatory
arbitration provisions. See United States
v. Palumbo Bros., Inc., 145 F.3d 850, 865
(7th Cir. 1998) ("Absent a clearly
expressed intention that Congress
intended one federal statute to preempt
another, courts must regard each as
effective and give them simultaneous
effect.") (citation omited). We feel that
the best way to harmonize these two
statutes is to allow a plaintiff employee
to bring an ADA claim in federal court
against his employer (even if his
employment is governed by a CBA which is
subject to the RLA), unless the
resolution of his ADA claim requires the
court to interpret the CBA’s terms as a
potentially dispositive matter.
Accordingly, because Brown’s claim
requires a potentially dispositive
interpretation of the CBA’s seniority
provisions, we hold the RLA precludes his
claim. Allowing Brown to bring his claim
in federal court would sanction a
judicial incursion into what the RLA
defines as the exclusive province of the
RLA arbitration boards--the resolution of
claims by reference to the terms of CBAs.
This would "lead to the evisceration of
the grievance and arbitration procedures
provided by the RLA," see Schiltz, 115
F.3d at 1415, and we are unwilling to
take this bold step without a clearer
Congressional mandate.

  However, one further challenge to our
holding needs to be addressed. In
addition to its argument from the
legislative history of the ADA, the EEOC
contends that relevant case law
conclusively establishes that the RLA
cannot preclude a plaintiff from
obtaining judicial resolution of
independent claims brought under federal
statutes like the ADA which confer rights
upon individual employees. Relying on
Alexander v. Gardner-Denver Co., 415 U.S.
36 (1974), the EEOC notes that
contractual rights arising under a CBA
and statutory rights provided by federal
employment discrimination laws are
"distinctly separate" in nature and inde
pendent of one another, and that an
aggrieved employee is free to vindicate
each type of right separately in its
proper forum (by bringing CBA rights to
arbitration or to whatever forum the CBA
dictates, and by litigating federal
statutory claims in court). See Gardner-
Denver, 415 U.S. at 50-52. The EEOC also
points to language in Gardner-Denver
stressing that arbitrators have
"authority to resolve only questions of
contractual rights," and have "no general
authority to invoke public laws that
conflict with the bargain between the
parties," see id. at 53-54, arguing that
claimants like Brown who seek judicial
resolution of their federal claims should
not be forced to bring those claims
before an arbitrator who lacks the
authority to resolve them.
Moreover,relying on Buell--a case which
addressed the RLA’s effect upon a claim
brought under the Federal Employers’
Liability Act (FELA)--the EEOC argues
that the RLA’s requirement of binding
arbitration of contractual disputes does
not preclude a disabled employee from
seeking judicial enforcement of his
independent statutory right to a
workplace free from disability
discrimination under the ADA. In Buell,
the Court rejected the defendant-
railroad’s argument that the RLA provides
"the exclusive forum for any dispute
arising out of workplace conditions,"
reasoning that "notwithstanding the
strong policies encouraging arbitration,
different considerations apply where the
employee’s claim is based on rights
arising out of a statute designed to
provide minimum substantive guarantees to
individual workers." 480 U.S. at 563, 565
(citation and internal quotation
omitted). The Court held that "the fact
that an injury otherwise compensable
under the FELA was caused by conduct that
may have been subject to arbitration
under the RLA does not deprive an
employee of his opportunity to bring an
FELA action for damages." Id. at 564.

  However, while the cases cited by the
EEOC stress the independence of claims
brought under federal statutes from
similar claims brought pursuant to the
provisions of a CBA, and establish a
plaintiff’s general right to judicial
resolution of his federal claims, none of
them hold that a federal claim whose
resolution depends upon the
interpretation of a CBA should not be
precluded by the RLA. The question
presented in Gardner-Denver as whether an
employee’s statutory right to trial de
novo for a claim brought under Title VII
may be foreclosed by the plaintiff’s
prior submission of a claim involving the
same facts to final arbitration under the
nondiscrimination clause of the CBA.
Gardner-Denver held that the plaintiff
could bring his Title VII claim in
federal court, regardless of whether or
how his claims brought under the CBA’s
discrimination clause were resolved,
because his Title VII rights were
distinct from and independent of his
rights under the CBA. However, unlike
Brown’s ADA claim, the Title VII claim
brought in Gardner-Denver did not depend
for its resolution on the interpretation
of a CBA. Gardner-Denver holds only that
"the federal policy favoring arbitration
does not establish that an arbitrator’s
resolution of a contractual claim is
dispositive of a statutory claim under
Title VII." 415 U.S. at 46 n.6. While we
certainly do not question that
proposition, it does not guide us in
resolving the matter before us. IC does
not argue that Brown cannot bring his ADA
claim in federal court because he
previously brought a similar claim under
some anti-discrimination clause of the
CBA; rather, it argues that under the
facts of this case, the resolution of
Brown’s ADA claim itself depends upon
interpretation of the CBA. Therefore,
Gardner-Denver is inapposite./10

  We find Buell inapplicable for similar
reasons. Buell held that the fact that an
employee’s injury which was otherwise
compensable under FELA "was caused by
conduct that might have been subject to
arbitration under the RLA" did not
deprive a Railroad employee of the right
to bring a FELA claim for damages. See
480 U.S. at 564. Buell’s FELA claim was a
simple negligence claim which presumably
required the court merely to analyze the
facts regarding his employer’s and his
co-worker’s conduct and to determine
whether that conduct constituted
actionable negligence under the standards
established by FELA./11 Like the claim
presented in Gardner-Denver, the
resolution of Buell’s claim did not
require the interpretation of a CBA, and
Buell is therefore of tenuous relevance
to Brown’s case. Buell addressed the
narrow question of whether the mere fact
that certain conduct might have been
grieved through the arbitration machinery
established by the RLA by itself
precluded a plaintiff from bringing a
claim under FELA. Answering this question
in the negative, the Court stated that an
injured worker should not be denied
recovery under FELA "simply because he
might also be able to process a narrow
labor grievance under the RLA to a
successful conclusion." Id. at 565
(emphasis supplied). Relying on Gardner-
Denver and its progeny, the Buell Court
rejected the Railroad’s argument that the
RLA’s grievance machinery is the
exclusive remedy for any of its
employees’ claims regarding workplace
conditions. ("This Court has, on numerous
occasions, declined to hold that
individual employees are, because of the
availability of arbitration, barred from
bringing claims under federal statutes."
Id. at 564 (citations omitted)). Buell
therefore stands for the general and
rather unremarkable proposition that the
RLA does not automatically preclude all
claims brought under independent federal
statutes merely because the same conduct
could be characterized as a violation of
the CBA and grieved pursuant to the RLA.
However, Buell does not hold that claims
based on federal statutes which can
themselves be conclusively resolved by
interpretation of a CBA may be brought in
federal court./12

  Therefore, the language in Gardner-
Denver, Buell, and their progeny
stressing both the independence of
federal statutory claims from CBA claims
and the inability of CBA arbitrators to
adjudicate federal statutory rights and
to enforce federal statutory remedies
must be understood in its proper context
and should not be read to permit Brown’s
claim to go forward. The EEOC relies on
this language to argue that claims
brought by employees pursuant to federal
statutes which create rights for
individual workers are not precluded by
the RLA, simply because they seek to
enforce rights which exist independently
of the CBA. We reject this argument for
three reasons. First, we have already
dismissed the argument in no uncertain
terms. See Monroe, 115 F.3d at 518-20
(holding that the RLA precluded a claim
brought under FELA because the resolution
of the claim required interpretation of
the CBA). In addition, as we have noted,
the relevant precedents from the Supreme
Court and the Courts of Appeals do not
support the argument. Indeed, they
consistently rule that claims brought
under federal or state statutes which can
be "conclusively resolved" by an
interpretation of a CBA are not truly
"independent" from the CBA, and are
therefore precluded by the RLA. See
Hawaiian Airlines, 512 U.S. at 257-63;
Lingle, 486 U.S. at 407 (stating that the
state law remedy at issue in that case
was "independent" of the collective-
bargaining agreement "in the sense of
’independent’ that matters for [LMRA]
sec. 301/13 pre-emption purposes:
resolution of the state-law claim does
not require construing the collective-
bargaining agreement"); Saridakis, 166
F.3d at 1277 (stating that "as long as
the . . . claim can be resolved without
interpreting the [CBA] itself, the claim
is ’independent’ of the agreement")
(quotation omitted). Finally, a bright-
line rule that the RLA does not preclude
claims brought under other federal
statutes cannot be reconciled with the
requirement that when conducting a
preclusion inquiry a court must examine
each federal statute to determine the
effect that Congress intended the
statutes to have upon each other. Thus,
we decline to hold that the RLA’s
preclusive effect is determined in each
case entirely by the source of the right
asserted in the plaintiff’s claim. It
remains true as a general rule that the
RLA will not bar a plaintiff from
bringing a claim under an independent
federal statute in court (because such
claims are generally independent of the
CBA and will be adjudicated under non-CBA
standards). However, this rule no longer
applies if the federal claim asserted by
the plaintiff depends for its resolution
on the interpretation of a CBA. Such
claims are not "independent" of the CBA
regardless of their source, and are
therefore precluded by the RLA.

  We close by stressing the limited scope
of our holding. A claim brought under an
independent federal statute is precluded
by the RLA only if it can be
dispositively resolved through an
interpretation of a CBA. This occurs
"only when a provision of the collective
bargaining agreement is the subject of
the dispute or the dispute is
substantially dependent upon an analysis
of the terms of a collective bargaining
agreement." Loewen, 65 F.3d at 1423
(citations omitted). Therefore, an
employer cannot ensure the preclusion of
a plaintiff’s claim merely by asserting
certain CBA-based defenses to what is
essentially a non-CBA-based claim, see
id., or by arguing that the action
challenged by the plaintiff is "arguably
justified" by the terms of a CBA. See
Hawaiian Airlines, 512 U.S. at 265-66.
Nor will a claim be precluded merely
because certain provisions of the CBA
must be examined and weighed as a
relevant but non-dispositive factor in
deciding a claim or a defense. Therefore,
Brown’s claim would not have been
precluded if either the parties did not
dispute the interpretation of the
relevant CBA provisions (and Brown had
merely argued that he was entitled to a
certain reasonable accommodation under
the ADA notwithstanding anything to the
contrary in the CBA),/14 or if the
disputed provisions of the CBA were
relevant but not dispositive of Brown’s
claim (as the CBA’s provisions describing
job functions are in relation to the ADA
"essential function" determination).
However, because in this case the
interpretation of the CBA’s
seniorityprovisions could dispose of
Brown’s entire ADA claim as a matter of
law, his claim is not truly "independent"
of the CBA and is precluded by the RLA.
Brown asserts that courts should allow
ADA claims "to be judicially adjudicated
in any instance where that can be done
without doing actual violence to the
competing statute." We agree. That is why
an ADA claim should be permitted to go
forward in all instances (even if the
claim "tangentially touches" a CBA, or if
a CBA claim based on the same facts has
or is being arbitrated) unless, as here,
it requires interpretation of a CBA which
could conclusively resolve the claim.
Abandoning this limitation and allowing
Brown’s claim to go forward would "do
actual violence" to the RLA.

CONCLUSION
  We have considered Brown’s other
arguments, and find them meritless. For
the foregoing reasons, the district
court’s decision to dismiss Brown’s claim
for lack of subject-matter jurisdiction
is AFFIRMED.

FOOTNOTES

/1 The trainman craft includes
trainmen/brakemen/switchmen ("trainmen") and
conductors. A trainman’s primary job duties are
to throw track switches, couple and uncouple
cars, couple and uncouple hoses, and engage and
disengage brakes. Conductors perform trainman
duties and supervisory functions.

/2 However, an employee who lays off sick is not
paid for that day.

/3 The CBA provides that "[e]ach employee assigned
to the guaranteed . . . extra board shall be
guaranteed 14 days at the conductor road switcher
rate each bi-weekly period." Crew Consist Agree-
ment, Art. III, Section 2, R. 60, Ex. 2, p. 8.
IC argues that the requirement of seven day per
week availability was something that IC aggres-
sively bargained for after it eliminated regular
yard jobs.

/4 Brown also notes that the IC’s job description
for the trainman position does not list as part
of the job’s requirements that the employee be
available 7 days per week.

/5 Brown also notes that the UTU has never taken
this position either, but instead has urged IC to
grant Brown the accommodation he seeks.

/6 It should be noted that this rule only applies if
the seniority system at issue is "bona fide," or
created for a legitimate purpose rather than a
discriminatory purpose. See Eckles, 194 F.3d at
1046 n.7, 1051. However, Brown does not argue
that the CBA’s seniority system was not "bona
fide."

/7 Moreover, the fact that Brown effectively imple-
mented the accommodation he seeks by laying off
as needed for one year and no one complained says
nothing about whether allowing Brown to work in
this manner created a new position under Article
55 and should have been listed for bidding.

/8 See also 29 C.F.R. sec. 1630.2(n)(3) (2000)
(stating that evidence of whether a particular
function is essential for ADA purposes includes,
but is not limited to:

(i) The employer’s judgment as to which functions
are essential; (ii) Written job descriptions
prepared before advertising or interviewing
applicants for the job; (iii) The amount of time
spent on the job performing the function; (iv)
the consequences of not requiring the incumbent
to perform the function; (v) the terms of a
collective bargaining agreement; (vi) the work
experience of past incumbents in the job; and/or
(vii) the current work experience of incumbents
in similar jobs. (emphasis supplied)).

See also Lenker v. Methodist Hosp., 210 F.3d 792,
796 (7th Cir. 2000).

/9 For this reason, unlike the district court, we
reject IC’s arguments that Brown’s claim is
precluded by the RLA merely because the court
would have to consult certain provisions of the
CBA in determining whether seven day per week
availability is an "essential function" of the
GEB trainman position.

/10 Moreover, we note that Gardner-Denver involved
the relationship between mandatory arbitration
provisions contained in a CBA and claims brought
under federal statutes, and did not address the
effect that the RLA’s mandatory arbitration
provisions have upon other federal claims. (In-
deed, the CBA at issue in Gardner-Denver was not
even governed by the RLA, since the employer was
not a "carrier" under the RLA.) Thus, Gardner-
Denver was not a true "preclusion" case at all,
much less an RLA preclusion case, and its rele-
vance to Brown’s case appears even more remote.

/11 We note that Buell would not be barred from
bringing this type of claim in court even under
the standards established in the RLA preemption
cases. "[P]urely 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," and
are therefore not preempted by the RLA. See
Hawaiian Airlines, 512 U.S. at 261 (citation and
internal quotations omitted).

/12 Similarly, none of the ADA cases from other
circuits on which the EEOC relies involve an ADA
claim whose resolution depends upon interpreta-
tion of a CBA. See Saridakis, 166 F.3d at 1277
(holding that the RLA did not preclude a plain-
tiff airline employee from bring an ADA claim
against his employer, where his asserted ADA
right was independent of the CBA and thus could
not be "conclusively resolved" by applying CBA
standards, and where the resolution of the claim
would require the court to "review the facts
underlying [plaintiff]’s termination" as well as
the employer’s motives, but would not require an
interpretation of the CBA); Benson v. Northwest
Airlines, Inc., 62 F.3d 1108, 1115 (8th Cir.
1995). But see Bates v. Long Island R.R. Co., 997
F.2d 1028, 1034-35 (2d Cir. 1993) (applying
Gardner-Denver and its progeny and holding that
the RLA did not preclude the plaintiff’s claim
under the Rehabilitation Act even though it
implicated portions of the CBA, reasoning that
"absent the same rights and procedures provided
in federal court, arbitration should not be the
sole forum for final resolution of federal civil
rights claims").

/13 In Hawaiian Airlines, the Court adopted Lingle’s
standard for addressing LMRA preemption to re-
solve claims of RLA preemption. See 512 U.S. at
263. Thus, Lingle is directly on point.

/14 Such arguments can succeed, because not all
provisions of a CBA "are immune from limitation
by the ADA duty to reasonably accommodate." See
Eckles, 94 F.3d at 1052. Unfortunately for Brown,
however, bona fide, collectively-bargained se-
niority systems which establish rights in other
employees are "immune" in the sense that they
cannot be subverted or superceded by any command
of the ADA.
