that an employer's decision to terminate a handicapped employee because of his handicap requires "an objective standard supported by factual or scientifically validated evidence, rather than . . . general assumptions that a particular handicap would create a hazard" to the employee or to others. Jansen, 110 N.J. at 378 (quoting N.J.A.C. 13:13-2.8(a)(2)) (emphasis added). Whether the employer has failed to make a reasonable accommodation for a handicapped employee is to be determined on a case-by-case basis. N.J.A.C. 13:13-2.5(b). Consequently, the outcome of plaintiff's discrimination claim will depend on the actual events which transpired between plaintiff and defendant, and not on the meaning of any provisions of the collective bargaining agreement. "Even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is 'independent' of the agreement for § 301 pre-emption purposes." Lingle, 486 U.S. at 409-10.
Following Lingle, there is significant support for the position that state anti-discrimination laws are not pre-empted by § 301 of the LMRA. In Carrington v. RCA Global Communications, Inc., Judge Debevoise, United States District Court for the District of New Jersey, held that "state law discrimination claims under the NJLAD are derived independently from state law, and not from the obligations assumed by the parties under the labor agreement" and thus are not pre-empted by § 301 of the LMRA. Carrington v. RCA Global Communications, Inc., 762 F. Supp. 632, 641-42 (D.N.J. 1991). Other courts have determined that state law rights of employees "not to be discriminated against because of physical handicap or medical condition . . . . [are] defined and enforced under state law without reference to the terms of any collective bargaining agreement," even where the agreement itself disallows discrimination. Ackerman v. Western Elec. Co., Inc., 860 F.2d 1514, 1517 (9th Cir. 1988); see also Smolarek v. Chrysler Corp., 879 F.2d 1326, 1334 (6th Cir.), cert. denied, 493 U.S. 992, 107 L. Ed. 2d 537, 110 S. Ct. 539 (1989) (claim for discrimination on the basis of a handicap involves purely factual questions concerning employer's behavior and motivation; interpretation of the collective bargaining agreement is not required); Miller v. AT&T Network Sys., 850 F.2d 543, 547 (9th Cir. 1988) (if mere overlap between mandatory state anti-discrimination provisions and labor contracts resulted in pre-emption of the state law, then § 301 would improperly govern the substance of what parties could agree to in a labor contract).
Defendant culminates its pre-emption argument with the proposition that "the union and employer have agreed to supplant entirely, as they are permitted to do, state law and regulations on the issues of whether an employee is physically capable of performing his job, whether the employer has an obligation to accommodate an employee's physical disability, and whether the employer is somehow discriminating against an employee because he has filed a worker's compensation claim." Def. Reply, at 7 (emphasis in original).
By making such an argument, defendant completely ignores the teachings of the Supreme Court in Lueck. The Court expressly stated that there is no indication that Congress, "in adopting § 301, wished to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation." Lueck, 471 U.S. at 212. Lueck was clear on the fact that § 301 does not permit the parties to a collective bargaining agreement to contract for terms which are illegal under state law. Id. "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.'" Lingle, 486 U.S. at 412 (citations omitted). In fact, "Congress expressly contemplated that the states would exercise their traditional regulatory powers to prohibit employment discrimination." United States v. City of Philadelphia, 798 F.2d 81, 86 n.5 (3d Cir. 1986); Carrington, 762 F. Supp. at 641. "Absent a conflict with federal law, therefore, state discrimination laws are also not preempted by federal labor law because 'the regulated conduct . . . touches interests so deeply rooted in local feeling and responsibility that the court cannot infer that Congress intended to deprive the States of the power to act.'" Carrington, 762 F. Supp. at 641-42 (quoting Sargent v. Int'l Bhd. of Teamsters, 713 F. Supp. 999, 1014 (E.D. Mich. 1989)).
Consequently, this Court rejects defendant's contention that plaintiff's state law discrimination claim is pre-empted by § 301 of the LMRA.
2. Plaintiff's Claim of Retaliatory Discharge for Collecting Workers' Compensation
Defendant also argues that plaintiff's claim of retaliatory discharge for collecting workers' compensation in violation of N.J.S.A. 34:15-39.1 (West 1988) is pre-empted by § 301 of the LMRA because resolution of such claim will require the interpretation of the collective bargaining agreement.
In order to establish "a prima facie case for retaliatory discharge the employee must prove: (1) that he made or attempted to make a claim for workers' compensation; and (2) that he was discharged in retaliation for making that claim." Cerracchio v. Alden Leeds, Inc., 223 N.J. Super. 435, 442-43, 538 A.2d 1292 (1988) (quoting Galante v. Sandoz, Inc., 192 N.J. Super. 403, 407, 470 A.2d 45 (Law Div. 1983), aff'd, 196 N.J. Super. 568, 483 A.2d 829 (App. Div. 1984)). The employer must then demonstrate that the employee was discharged for another, non-pretextual reason. Lepore v. Nat'l Tool & Mfg. Co., 224 N.J. Super. 463, 473, 540 A.2d 1296, aff'd, 115 N.J. 226, 557 A.2d 1371 (1988), cert. denied, 493 U.S. 954, 107 L. Ed. 2d 353, 110 S. Ct. 366 (1989). The fact that the employee is also covered by a collective bargaining agreement does not preclude an action for retaliatory discharge which is predicated on an independent state basis. Lepore, 115 N.J. at 228.
The Supreme Court's decision in Lingle v. Norge Division of Magic Chef, Inc. is controlling here. There, the Supreme Court held that the Illinois state law tort of retaliatory discharge for filing a workers' compensation claim is not pre-empted by § 301 of the LMRA. Lingle, 486 U.S. at 407. The Court determined that the elements of the tort of retaliatory discharge under Illinois law are "purely factual questions pertaining to the conduct of the employee and the conduct and motivation of the employer." Id. Neither the elements of this cause of action, nor the available defenses, require the interpretation of the collective bargaining agreement. Id.
The elements of a claim for retaliatory discharge for collecting workers' compensation benefits under New Jersey law closely mirror the elements required under the Illinois tort discussed in Lingle. Thus, resolution of the retaliatory discharge claim under New Jersey law would require a purely factual inquiry which does not depend upon the meaning of any terms in the collective bargaining agreement. See id. Since "the state law cause of action is concerned not with the employer's contractual right to discharge the employee, but rather with its motives in exercising that right, the . . . [collective bargaining agreement] is not relevant and preemption does not apply." Jarvis v. Nobel/Sysco Food Services Co., 985 F.2d 1419, 1427 (10th Cir. 1993). Even if the employer's non-retaliatory explanation for the discharge depends on its interpretation of the collective bargaining agreement, "so long as this interpretation was made in good faith and actually motivated . . . [the employer's] actions," it constitutes a valid defense "without regard to the correctness of the interpretation." Id. See also Jones v. Roadway Express, Inc., 936 F.2d 789, 792 (5th Cir. 1991) (court need only determine the factual question of whether employer's discharge of employee was motivated by the filing of a workers' compensation claim or an alternative motive; whether motive is justified by the collective bargaining agreement is irrelevant if retaliation was not a motive). Consequently, this Court concludes that plaintiff's retaliatory discharge claim does not require the interpretation of any provisions of the collective bargaining agreement, and as a result, is not pre-empted by § 301 of the LMRA.
Defendant argues that not all workers' compensation claims under state law can escape the pre-emptive effect of § 301 and cites a number of post-Lingle cases in support. However, the cases cited by defendant are distinguishable from the case at hand. In Medrano v. Excel Corp., plaintiff's wrongful discharge claim was pre-empted by § 301 of the LMRA because plaintiff's claim specifically challenged a provision of the collective bargaining agreement. Medrano v. Excel Corp., 985 F.2d 230, 233-34 (5th Cir.), cert. denied, 126 L. Ed. 2d 47, 114 S. Ct. 79 (1993). In Magerer v. John Sexton & Co., the First Circuit found that plaintiff's retaliatory discharge claim was pre-empted by § 301 because the Massachusetts statute expressly provided that the terms of the collective bargaining agreement are to prevail over inconsistent statutory provisions. Magerer v. John Sexton & Co., 912 F.2d 525, 529 (1st Cir. 1990). The Sixth Circuit, in Terwilliger v. Greyhound Lines, Inc., found pre-emption because plaintiff's state law claim of fraud and misrepresentation was in effect a claim that the employer violated the terms of the collective bargaining agreement. Terwilliger v. Greyhound Lines, Inc., 882 F.2d 1033, 1037-38 (6th Cir. 1989), cert. denied, 495 U.S. 946, 109 L. Ed. 2d 531, 110 S. Ct. 2204 (1990). In Doran v. Thermatex, plaintiff's termination claim was pre-empted because it was based on the allegation that the employer had incorrectly interpreted the collective bargaining agreement. Doran v. Thermatex, 1989 U.S. Dist. LEXIS 16312, No. C88-873Y, 1989 WL 163700, at *3 (N.D. Ohio July 31, 1989). Finally, the claim in Robinson v. Cushman, Inc. did not involve workers' compensation retaliation. Plaintiff's claim alleged "that he was discharged without just cause and due process while on workers' compensation disability in violation of Nebraska public policy." Robinson v. Cushman, Inc., 242 Neb. 830, 496 N.W.2d 923, 926 (1993). Since the cases cited by defendant in support of its pre-emption argument are inapplicable to the case at hand, this Court rejects defendant's contention that plaintiff's workers' compensation retaliation claim is pre-empted by § 301 of the LMRA.
C. Pre-emption by the Federal Motor Carrier Safety Regulations
Defendant argues that plaintiff's handicap discrimination and workers' compensation retaliation claims are pre-empted by the Federal Motor Carrier Safety Regulations, 49 C.F.R. §§ 391.41-49, promulgated by the DOT. For the reasons stated below, the Court rejects defendant's argument.
The pre-emption doctrine, the foundation of which is grounded on the Supremacy Clause of the U.S. Constitution, Art. VI, cl. 2, directs us to examine congressional intent. Fidelity Fed. Sav. & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 152, 73 L. Ed. 2d 664, 102 S. Ct. 3014 (1982). Congressional intent to pre-empt a given field may be "explicitly stated in the [federal] statute's language or implicitly contained in its structure and purpose." Jones v. Rath Packing Co., 430 U.S. 519, 525, 51 L. Ed. 2d 604, 97 S. Ct. 1305 (1977). In the absence of explicitly preemptive language, a congressional intent to pre-empt can be inferred where (1) the federal scheme of regulation is so pervasive as to create a reasonable inference that Congress left no room for the states to supplement the law in the area or (2) the federal law pertains to an area in which "the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state law on the same subject" or (3) the goal to be obtained by the federal law and "the character of obligations imposed by it may reveal the same purpose." Fidelity Fed., 458 U.S. at 153 (citing and quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947)).
Federal regulations are deemed to have just as much preemptive effect as federal statutes. Fidelity Fed., 458 U.S. at 153; Pokorny v. Ford Motor Co., 902 F.2d 1116, 1122 (3d Cir.), cert. denied, 498 U.S. 853, 112 L. Ed. 2d 113, 111 S. Ct. 147 (1990). "There is generally a presumption against pre-emption, . . . . therefore, state law must create an actual conflict with a federal regulatory scheme before it is impliedly pre-empted." Pokorny, 902 F.2d at 1122. In instances where the federal law has not totally displaced state law, state law is nullified (1) if it conflicts with federal law, a situation which arises when compliance with both state and federal regulations is impossible, or (2) if it is an obstacle to accomplishing and executing the goals of federal law. Fidelity Fed., 458 U.S. at 153.
Congress has given the Secretary of Transportation the power to prescribe the qualifications of the drivers who are engaged by motor carriers. 49 U.S.C.A. § 3102(b)(1) (West Supp. 1994). Accordingly, DOT's Bureau of Motor Carrier Safety, Federal Highway Administration, has promulgated regulations which establish the minimum physical qualifications for drivers of interstate carriers. See 49 C.F.R. §§ 391.1, 391.41-49 (1993). The regulations require drivers to have their certifications renewed every two years, and following a period of injury or disease which impaired the driver's ability to perform his duties. 49 C.F.R. § 391.45(b)(1), (c).
Defendant argues that plaintiff's state law claims are pre-empted because a determination of those claims would directly conflict with defendant's obligations under the federal regulations. Def. Memo, at 26. In support of its argument, defendant offers C.J. v. Vuinovich, 252 N.J. Super. 122, 133, 599 A.2d 548 (1991), where the New Jersey Superior Court held that a NJLAD handicap discrimination claim by a discharged member of the National Guard was pre-empted by federal law. The court explained that the Department of the Army Regulation 600-110 required the military to discharge plaintiff once he tested HIV positive. Id. This case does not help defendant's argument because at all relevant times, defendant was either unaware as to whether or not plaintiff was qualified under the DOT regulations, or defendant was fully aware that plaintiff had been recertified pursuant to the DOT requirements. That is, when plaintiff asked to return to work in October 1990, defendant did not know whether or not plaintiff was qualified under the DOT requirements because a recertification exam had not yet been performed.
On the other hand, when plaintiff asked to return to work in May 1991, defendant should have been fully aware that plaintiff was recertified pursuant to the DOT regulations on December 17, 1990. See Kube Aff, Exh. D. Consequently, defendant is not aided by the reasoning in Vuinovich because, under the circumstances, the DOT regulations did not require plaintiff's discharge.
Defendant also relies on Belgard v. United Airlines, 857 P.2d 467 (Colo. Ct. App. 1992), cert. denied, 127 L. Ed. 2d 386, 114 S. Ct. 1066 (1994), where a Colorado court rejected a handicap discrimination claim of two applicants for pilot jobs who alleged that they were rejected because they had corrective myopia surgery. However, this case is distinguishable on two grounds. First, the airline-defendant's pre-emption claim was based on federal aviation law, not DOT regulations at issue in this case. Second, the Colorado court found that federal aviation law pre-empted plaintiffs' handicap discrimination claims because Congress had "expressed a specific intent to pre-empt the operation of state laws of this nature." Id. at 470. No such intent to pre-empt is expressed or implied in the DOT regulations. In fact, the regulations even provide that they are "not intended to preclude States or subdivisions thereof from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations." 49 C.F.R. § 390.9. "The federal regulatory scheme governing the physical qualifications for drivers indicates an intent on the part of Congress to occupy the field of driver regulation [only] to the extent of existing regulations." Visnovec v. Yellow Freight Sys., Inc., 754 F. Supp. 142, 146 (D. Minn. 1990).
In creating these regulations aimed at public safety, the DOT could not have intended to pre-empt state regulation of such important rights as the right to be protected from handicap discrimination and workers' compensation retaliation. Such important local concerns do not fall within the sphere of subject matter regulated by the DOT. The only time that a pre-emption question could possibly arise in this context is when the state statute requires conduct which prevents compliance with the DOT regulations. However, the NJLAD takes into consideration the fact that a handicap may interfere with the performance of a particular job. See N.J.S.A. 10:5-4.1. Thus, New Jersey law permits an employer to refuse to employ or accommodate an employee when such decision is based on objective standards, such as the Federal Motor Carrier Safety Regulations, when supported by factual evidence. See N.J.A.C. 13:13-2.8(a)(1). Consequently, operation of the NJLAD does not conflict with the DOT regulations and, therefore, plaintiff's handicap discrimination claim is not pre-empted by this federal regulatory scheme.
Defendant further offers Carolina Freight Carriers v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Comm'n, 99 Pa. Commw. 428, 513 A.2d 579 (Pa. Commw. Ct. 1986), appeal denied, 514 Pa. 620, 521 A.2d 934 (Pa. 1987) in support of its pre-emption argument. In Carolina Freight, an employer rejected two applicants for the position of truck driver because the applicants, when examined, failed to meet the physical qualifications under the DOT regulations. Carolina Freight, 513 A.2d at 580-81. The applicants filed complaints with the Pennsylvania Human Relations Commission alleging handicap discrimination. The Commission found for the applicants and directed the employer to hire the applicants into the next available positions. Id. at 581. On appeal, the Commonwealth Court of Pennsylvania reversed the Commission's order and held that federal law pre-empted the order because compliance with the order would be impossible without also violating the DOT regulations. Id. at 583-84.
However, Carolina Freight is distinguishable because, in the case at hand, plaintiff was never found to have violated any of the DOT qualification requirements in contrast to the applicants in Carolina Freight. As discussed previously, at all relevant times, defendant was either unaware as to whether or not plaintiff qualified under the DOT regulations, or defendant should have been aware that plaintiff had been recertified under these regulations. Thus, at best, there exists a question of fact as to whether plaintiff met the DOT regulations when he sought reinstatement in October 1990. Defendant cannot argue that plaintiff's state law claims are pre-empted by the Federal Motor Carrier Safety Regulations because defendant cannot show that, at that time, plaintiff failed to meet the qualifications required by such regulations. When plaintiff asked to return to work in May 1991, he was fully certified, as of December 17, 1990, under the qualifications established by the DOT. See Kube Aff., Exh. D. Defendant's failure to reinstate plaintiff at this time cannot be justified by its reliance on the federal regulations. Consequently, plaintiff's state law claims cannot be said to be pre-empted by these federal regulations.
D. Remand to State Court
This Court finds that plaintiff's state law claims are preempted neither by § 301 of the LMRA, nor the Federal Motor Carrier Safety Regulations. As a result, there exists no federal question in this suit and only state law claims comprise plaintiff's cause of action. Accordingly, this Court lacks subject matter jurisdiction in this case and remand to the state court is proper.
For the reasons set forth above, defendant's summary judgment motion is denied and the case is remanded to state court. An appropriate order will be entered.
STANLEY S. BROTMAN
UNITED STATES DISTRICT JUDGE
ORDER - September 30, 1994, Filed
This matter having come before the Court on the motion of defendant, New Penn Motor Express, Inc., for summary judgment pursuant to Fed. R. Civ. P. 56;
Having considered the submissions of the parties;
For the reasons set forth in the Court's opinion of this date;
IT IS on this 27 day of September, 1994 hereby ORDERED that defendant's motion for summary judgment is DENIED; and IT IS FURTHER ORDERED that this case is REMANDED to the Superior Court of New Jersey, Camden County.
STANLEY S. BROTMAN
UNITED STATES DISTRICT JUDGE