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

_________________

Reardon, P.C. were on brief, for appellee.

_____________

_________________________

Bray &
______

December 10, 1997

_________________________

_______________
*Of the Northern District of Ohio, sitting by designation.

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

Having prevailed before a jury,

plaintiff-appellant Albert

turn

to ashes

matter of law

Lines,

when the

A. Flibotte saw his

district

court entered

in favor of defendant-appellee

Inc. (PTL)

on the

apparent victory

ground that

judgment as

Pennsylvania Truck

Flibotte's

claims were

preempted by section 301 of the Labor Management Relations Act of

1947, 29 U.S.C.

185 (1994).

the jury verdict.

Flibotte beseeches us to reinstate

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.

PTL terminated

him in 1987 for

This relationship persisted until

his refusal to participate

in a

drug

testing procedure

refusal that, under

collective bargaining agreement, "constitute[d]

intoxication."

(NMFA).

pursuant

violate

a presumption of

National Master Freight Agreement, Art. 35, Sec.

Local

to the

arbitration.

the applicable

25

filed a

NMFA and

grievance

eventually took

on Flibotte's

the case

behalf

to binding

The arbitrator found that Flibotte's ouster did not

the

collective

bargaining

pact

and

rejected

the

grievance.

Flibotte subsequently

in

a Massachusetts

claim

for loss

state court.

of consortium

complaint contained counts

impairment

filed a civil action against PTL

of civil rights,

In

addition to

on behalf

of Mrs.

a derivative

Flibotte, the

for negligence, invasion of

privacy,

defamation, negligent infliction of

emotional

distress,

distress.

Flibotte

and

intentional

alleged that

infliction

PTL

of

notified a

emotional

group of

37

employees, himself included, to report on March 13, 1987, for the

biennial

physical

federal

motor

"because

his

examination

carrier

safety

examination

was

and

drug

test

regulations;

not

yet

due

required

that

and

he

under

refused

because

the

[designated examination site] was rat-infested"; that, within one

week after he boycotted the scheduled test, he

drug

test

administered

nonetheless

claimed

discharged him

that

employment

by

in

and,

so

in

his

physician;

summarily

doing,

the

own

PTL

bargain,

took and passed a

on March

wrongfully

breached

and

18,

that PTL

1987.

He

terminated

his

various

state-law

duties.

PTL

removed the

case to

the

Court for the District of Massachusetts

of citizenship and

the usual

including

District

on dual bases (diversity

the existence of a federal

preliminaries

for summary judgment

United States

question).

the denial of

the case proceeded to

After

PTL's motion

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.

of

Judge Nelson denied one such motion

the plaintiff's case

evidence.

Flibotte

In due

and the other

season,

on three counts

and

the

jury

at the close

returned a

negligence, negligent

intentional

emotional

distress,

distress

and awarded him $625,000 in damages.

at the end

infliction

of all the

verdict

for

infliction of

of

emotional

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

motion

sat unresolved

bankruptcy court's

an

hawked section 301 preemption.

when, in

April of

protection under Chapter

automatic stay of proceedings in the

U.S.C.

362 (1990).

court confirmed

the toils

district

sought the

11, thus triggering

district court.

See 11
___

Some seventeen months later, the bankruptcy

a plan of reorganization.

of bankruptcy

cleared the way

court proceedings.

become disabled and

1992, PTL

The

By then,

PTL's emergence from

for resumption

of the

however, Judge Nelson had

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

substantive

erred when

objections

dimensions.

possess

First, he

argues

she purposed to revisit issues

Judge Nelson.

both

procedural

that Judge

and

Gertner

previously decided by

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

quality.

In

one

procedural

iteration,

it

objection

has

implies

that

chameleonic

Judge

improperly made fact-based determinations contrary to

Gertner

those made

by her predecessor

the judge

position

myriad

and in flagrant disregard of

who actually presides

to

make

over a

such determinations.

counter-precedential assumptions

this objection,

which motions

it suffices to

for judgment

the truism that

trial is in

Without

that

of law

engaging the

are essential

say that the legal

as a matter

a superior

to

framework in

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

_________________

(discussing

F.2d

1364, 1383-84

applicable standards),

and there

(1st Cir.

is no

1991)

indication

here that Judge Gertner disobeyed these guidelines.

Flibotte's next iteration

is no more

own

rewarding.

precedents,

incompetent

to

and

revise

He asserts

that,

Judge

Nelson's

posed by

effort to

employ the venerable

in the

tribunal, a

the case.

large

legal

that,

that a court is

therefore,

questions

states

of his procedural

Judge

answers

This objection

law of the case

unless

decision made

at

corrected by

one stage

objection

bound by its

Gertner

to

is an

the

was

legal

apparent

doctrine, which

an

of a

appellate

civil

or

criminal

case constitutes

pendency of

the

the litigation.

law of

the case

throughout the

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

Although

principle is of

temporally

distant

denial of PTL's motions for

no real assistance

from

each other,

to Flibotte.

Judge

Nelson's

summary judgment and for judgment as

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.

Nelson

Judge

and Judge Gertner, therefore, play the same institutional

role for the purpose of this litigation.

That confluence

here.

"Under the law

of judicial identities

of the case

is dispositive

doctrine, as it

is commonly

understood, it is not improper for a court to depart from a prior

holding if convinced that it

a manifest injustice."

is clearly erroneous and would work

Arizona
_______

v. California, 460 U.S. 605, 619

__________

n.8 (1983).

Moreover, it is perfectly appropriate for a judge to

refuse to direct

and thereafter

a verdict, permit the jury to

to grant

judgment

See Talbot-Windsor Corp. v.

___ _____________________

1962).

PTL

Accordingly,

the

relief

notwithstanding

notwithstanding the

Miller, 309 F.2d

______

68, 69

Judge Nelson would have been

that

his

consider a case,

it

sought

in

its

previous rulings;

and

when

Gertner did not arrogate unto

she

judgment as

entertained

a matter of

PTL's

renewed

III.
III.
____

free to grant

Judge

motion

Gertner, who

Consequently,

herself any undue authority

post-verdict

law and reached a

than had her co-equal predecessor.

(1st Cir.

post-verdict

stood in his shoes, was at liberty to do the same.

Judge

verdict.

motion

for

different conclusion

Section 301 Preemption

Section 301 Preemption
______________________

Having found

no procedural

glitch, we

turn to

Judge

Gertner's decision.

as

matter

of

We review a ruling on a motion for judgment

law

standards that constrain

de novo,

applying

the

the district court.

identical

legal

See Colasanto
___ _________

v.

Life Ins. Co. of N. Am.,

_________________________

Accordingly,

"the

extractable

therefrom

evidence

must

favorable to the nonmovant

should

be

100 F.3d

granted only

203, 208

and

all

be

examined

reasonable

in

and a [judgment as

when

the

(1st Cir.

the

1996).

inferences

light

most

a matter of

law]

evidence, viewed

from

perspective, is such that reasonable persons could reach but

conclusion."

this

one

Veranda Beach, 986 F.2d at 1383-84.1

_____________

A.
A.
__

The Legal Landscape

The Legal Landscape
___________________

Read

jurisdiction

employer

literally,

section

301

confers

federal

court

over "[s]uits for violation of contracts between an

and a labor

organization representing employees

in an

industry

affecting

commerce."

Over

the

years,

however, the

____________________

1This

case has

a peculiar

twist.

Gertner, though new to the case,

benefit of a trial transcript,
been prepared to
the question

this date.

of which way

In most cases,

It appears

that Judge

ruled on the motion without the

and a complete transcript has not

We

need not probe too

the absence of this

a transcript would form

deeply into

transcript cuts.

an integral part

of the

court's decisional calculus on a post-verdict motion for judgment

as

matter

preemption

of law.

Here,

embodies

resolution on the

however,

a pure

question

the

critical issue

of law

susceptible

face of the pleadings (as

collective bargaining

agreement).

In

to

supplemented by the

ruling on the

motion for

judgment as a matter of law, Judge Gertner hewed to this line and

did

not make

any extraneous

factual

Because the judge's analysis and

findings or

assumptions.

decision did not need to engage

any facts derived from trial testimony, this is the rare

which

the absence

of a

correctness of a ruling on

trial transcript

is immaterial

case in

to the

a post-verdict motion for judgment as

a matter of law.

Supreme

Court

beginning

courts

has

with its

to craft

placed

heavy

holding that

federal

common

gloss

353

U.S. 448,

this

language,

the

statute empowers

law

reasonably

effectuate the objectives of section 301.

Lincoln Mills,
______________

on

451

federal

necessary

to

See Textile Workers v.

___ _______________

(1957).

This substantive

authority to declare federal common law soon formed the basis for

an

emerging jurisprudence of

Supermarkets, Inc.,
__________________

105 F.3d

preemption.

40, 41-42

See
___

Martin v. Shaw's
______
______

(1st Cir.)

(recounting

development of section 301 preemption), cert. denied, 118 S.

_____ ______

69 (1997).

net.

Today, labor-law preemption casts

Thus,

resolution

section

of

301

[that]

collective-bargaining

preempts a

claim

agreement."

a relatively wide

state-law

depends

on

Ct.

the

claim "if

meaning

the

of

Lingle v. Norge Div. of Magic

______
___________________

Chef, Inc., 486 U.S. 399, 405-06 (1988).

__________

This rule is

cautioned

conduct or

court

to

agreement."

not without limitations.

that "purely

factual

an employer's

interpret

any

questions

about an

conduct and motives

term

of

The Court

do not

has

employee's

require a

collective-bargaining

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 262

_______________________
______

(1994) (citation and internal quotation marks omitted).

It also

has warned that

nonnegotiable

section 301 "cannot be read

rights conferred

matter

of state

(1994).

Even

Lingle and
______

law."

so, the

its progeny:

claim, whether founded

on

Livadas
_______

basic

broadly to pre-empt

individual

employees

v. Bradshaw, 512
________

test remains

that prescribed

upon the state's positive

U.S. 107, 123

that section 301 preempts

as

by

a state-law

or common law,

if

a court,

interpret

in passing

upon the

the collective

practice, this test

claim,

bargaining

would be

agreement.

required to

See
___

id.
___

In

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

collective bargaining agreement

qualifies

if

it

agreement.

that

pre-empted by

First,

arguably

a claim so

constitutes a

arises pursuant to a collective bargaining

See United Steelworkers

___ ___________________

(1990) ("[A]

is

in two ways.

alleges conduct

breach of a duty that

the "meaning" of

state-law tort action

v. Rawson, 495 U.S. 362, 369

______

against an

employer may

be

301 if the duty to the employee of which the tort

a violation is

created by a

collective-bargaining agreement

and without existence independent of the agreement.").

claim

so

qualifies if

interpretation

of

the

its resolution

section 301

arguably hinges

collective bargaining

Allis-Chalmers Corp. v. Lueck, 471

____________________
_____

Second, a

upon an

agreement.

See
___

U.S. 202, 220 (1985) (finding

preemption "when resolution of a

state-law claim is

substantially dependent upon analysis of the term of an agreement

made between the parties

claim

depends

agreement

on

in either

the

in a labor contract").

meaning

of these

of

ways

the

If a state-law

collective

that

is, under

bargaining

Rawson's
______

"duty" rubric or under Allis-Chalmers's "interpretation" rubric

______________

it is preempted.

B.
B.
__

The Merits
The Merits
__________

At trial, Flibotte prevailed on three state-law claims:

negligence,

negligent

infliction

intentional infliction of

pleadings,

of

emotional

emotional distress.

supplemented by the

distress,

and

Our review of the

items that Flibotte

included in

the record

appendix on appeal (such as the collective bargaining

agreement)

confirms that

none of

these

rights that are made non-negotiable

of

them are preempted

begin

with

the

involves

under state law and that all

by section 301.

negligence

three claims

claims

For

and

clarity's sake, we

then

focus

on

the

intentional infliction claim.

1.
1.

Negligence.
Negligence.
__________

claims are to

not

spring

society."

two negligence-based

escape preemption, he must establish

from

agreement, but,

violate

If Flibotte's

the duty

duties imposed

by

the

rather, that PTL has acted

of reasonable

care

Rawson, 495 U.S. at 371.

______

that they do

collective bargaining

"in a way that might

owed to

every person

This would be

in

no mean feat.

Even assuming, favorably to Flibotte, that PTL allegedly breached

duties

derived

from

bargaining agreement,

nonetheless depends

Consequently,

the

source

extrinsic

resolution of

to

the

collective

the negligence

upon the interpretation

those claims are preempted

of that

claims

agreement.

under section 301.

We

explain briefly.

Flibotte's damage

links

both

directly

his

to his

economic

claim, as

losses

termination.

and

framed in

his

In order

his complaint,

emotional

to

prevail on

claims, he must prove that PTL wrongfully discharged him.

10

distress

these

If PTL

acted within its contractual rights

in severing the tie, then it

could not have breached its general duty of care.

us that we

of

cannot resolve this question, involving the propriety

Flibotte's

firing,

intricacies of the

without

appear

for

substantial

PTL cashiered him because

scheduled

drug

bargaining agreement in force here

frequency

of testing, see
___

IIB, and the

inquiry

collective bargaining agreement.

the appellant concedes that

to

It is clear to

test,

and

the NMFA

NMFA Uniform Testing

consequences of a failure to take

the

into

the

After all,

he failed

collective

governs both the

Procedure, Sec.

an offered test,

see NMFA, Art.

___

PTL's

35, Sec. 3.

negligence

Hence, it is impossible to determine

without

inquiring

into

its

obligations as described by the collective bargaining

rights

and

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

we

also

would

preempted to the

note

that

and we do

Flibotte's

not think that it is

negligence

extent that they stem from

claims

are

his contention that

the conditions of the requested test were unsanitary and violated

the

employer's duty to

for the

examination.

relationship as

provide a suitable

This

duty

hygienic environment

derives from

defined in the collective

the

employment

bargaining agreement,

and as such,

plaintiff

expedient

it cannot form the basis for a

cannot

of

skirt

section 301

recharacterizing

an

state-law claim.

preemption

employer's

by

the simple

substandard

11

performance of duties that devolve

of the

upon it pursuant to the terms

collective bargaining agreement

495 U.S. at 371-72.

as a tort.

See Rawson,
___ ______

2.
2.

Intentional Infliction of Emotional Distress.

Intentional Infliction of Emotional Distress.
____________________________________________

leaves only the

appellant's claim for intentional

emotional distress.

To prevail

prove that PTL (1) intended

This

infliction of

on that claim, Flibotte

had to

to inflict emotional distress by (2)

undertaking actions that were extreme and outrageous, thereby (3)

causing emotional

v. Adams,
_____

distress which (4) was severe.

829 F.2d 196, 213-14

(1st Cir. 1987); Agis

____

Johnson Co., 355 N.E.2d 318-19 (Mass. 1976).

___________

law, "extreme

outrageous

beyond

and outrageous

in character,

all possible

atrocious,

and utterly

conduct" is

and so

bounds of

See Wagenmann
___ _________

extreme

Under Massachusetts

behavior that is

in degree,

decency, and

intolerable in

v. Howard
______

to be

as to

"so

go

regarded as

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

principle that

state

tort

law.

It

a party cannot be liable if

is

well-settled

it does no more than

"insist upon [its] legal rights in a permissible way, even though

[it]

was well

aware that

emotional distress."

(1965); see Rush

___ ____

such insistence

Restatement (Second)

is certain

of Torts,

v. United Technologies, 930 F.2d

___________________

12

to cause

46 cmt. g

453, 456 (6th

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

emotional distress cannot lie.2

issues necessitates

for

Because the

examination

agreement, the claim is preempted.

at 213; see also

___ ____

119 (1st Cir.

intentional infliction

of

the

of

resolution of these

collective

bargaining

See Allis-Chalmers, 471 U.S.

___ ______________

Jackson v. Liquid Carbonic Corp., 863 F.2d 111,

_______
_____________________

1988) (upholding section 301 preemption

in a drug

testing case on

the contours

answer

the ground, inter alia, that

_____ ____

of the

whether

the

[collective bargaining

[drug

testing]

"[o]nly by probing

agreement] can

program

was

one

legitimately

implemented").

IV.
IV.
___

Conclusion
Conclusion
__________

We

are not without sympathy for Flibotte, who obtained

a large verdict many years ago, then

legal limbo,

when a

and ultimately saw

his prized damage

new judge came on the scene.

Flibotte

equivalent

views

the

newly

was plunged into a longeval

arrived

of the Grinch who stole

award vanish

It is understandable that

judge

as

the

juridical

Christmas, but in actuality,

the judge did

no more

than her

duty.

As

resolution of

each of

Flibotte's state-law

she recognized,

claims requires

the

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
applied

that, when

through

unions and

the

developed, the resultant

grievance procedures

management."

Jackson
_______

F.2d 111, 114 (1st Cir. 1988).

rules would

agreed

be

upon between

v. Liquid Carbonic Corp., 863

______________________

This reason remains valid today.

13

examination of the

terms of the collective

and, as

the claims are

a result,

bargaining agreement

preempted under

section 301.

Because the district court correctly divined and applied the law,

we can go no further.

Affirmed.
Affirmed.
________

14