The opinion of the court was delivered by: Robert W. Gettleman, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Clayton Starks, III has brought a five count complaint against
defendant alleging (1) racially hostile work environment; (2) retaliation;
(3) negligent infliction of emotional distress; (4) intentional infliction
of emotional distress; and (5) disparate treatment, in Counts I through V
respectively. Defendant has moved to dismiss Counts III through V for
failure to state a claim. For the reasons set forth below, the motion is
Plaintiff, an African-American male, has worked for defendant since
approximately June 1993, most recently as a conductor. In October 2001,
plaintiff requested to work the "Burro Crane Pilot" position, which is a
higher paying position than most jobs available at. defendant. The crane
generally runs and, therefore, the position is open, one week at a time.
Plaintiff alleges that starting in October 2001, after his request, he
would be assigned to the position for one or two days and then the position
would be terminated, only to be reopened the next day with a Caucasian
worker with less seniority working the rest of the week. Plaintiff
complained to his union in October 2001, but no action was taken. Plaintiff
also complained to his supervisor, Michael Stuckey, but received no
On November 26, 2001, plaintiff again complained to Stuckey. Outside
Stuckey's door was a sign that said "English Only," Upon entering the
office, Stockey began snickering and looking above plaintiffs head. Tied to
a pipe hanging directly above plaintiffs head was a hangman's noose.
In Courts III and IV, plaintiff alleges state law claims for negligent
and intentional infliction of emotional distress. Defendant argues that
these claims for personal injury must be brought pursuant to the Federal
Employers Liability Act ("FELA"), 45 U.S.C. § 51. Defendant argues
that FELA is the exclusive remedy for injured railroad workers. See Myers
v. Illinois Central R. Co., 323 Ill. App.3d 780, 786 (4th Dist. 2001).
Defendant is correct that FELA generally provides the exclusive remedy
for railroad employees seeking to recover for personal injury sustained
in the course of employment. Erie Railroad Co. v. Winfeld, 244 U.S. 170
(1917). The Supreme Court has held, however, that FELA applies only when
the plaintiff suffers a physical injury or non-physical injury resulting
from physical impact. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532
(1994), In Gottshall, the Court found that an emotional injury
constitutes injury resulting from an employer's negligence for purposes
of FELA only if it would be compensable under the common-law zone of
danger test. Id. at 555. Because this zone of danger test "limits
recovery for emotional injury to those plaintiffs who sustain a physical
impact as a result of a defendant's negligent conduct, or who are placed
in immediate risk of physical harm by that conduct," there can be no FELA
claim for emotional damages absent physical impact or threat of immediate
physical harm. Id. at 547-48. Throughout its opinion in Gottshall, the
Court cited with approval the Seventh Circuit opinion in Lancaster v.
Norfolk and Western Railroad, 773 F.2d 807, 815 (7th Cir. 1985), holding
that "FILA does not reach torts which work their harm through nonphysical
In the instant case, plaintiff makes no allegation of physical harm or
physical impact, or that he was ever placed in immediate risk of physical
harm. Plaintiffs allegation that he has suffered physical and emotional
pain and suffering is not, as defendant argues, an allegation of physical
injury or impact, and is insufficient to support a FELA claim. Therefore
plaintiff's claim for negligent and intentional infliction of emotional
distress are not cognizable under FELA.
That leaves the question of whether FELA preempts any claims for
personal injuries that are not cognizable under that statute. A federal
statute, such as FELA, overrides state law when the scope of the statute
indicates that Congress intended to "occupy the field," or when the state
law is in actual conflict with the federal statute. Harris-Scaggs v. Soo
Line R.R. Co., 2 F. Supp.2d 1179, 1183-84 (E.D. Wis. 1998) (citing
Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995)). Because FELA has
no explicit preemptive language, the question becomes whether Congress'
intent to supercede state law altogether may be found from a scheme of
federal regulation so pervasive as to make reasonable the inference that
Congress left no room for supplemental state regulation ["whole field
preemption"], either "because the act of Congress may touch a field 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
because the object sought to be obtained by the federal law and the
character of obligations imposed by it may reveal the same purpose."
Pacific Gas and Electric Co. v. Energy Resources Comm'n, 461 U.S. 190,
2O3-04 (1983); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230
Even where Congress has not completely displaced state regulation in a
whole field, state law is also nullified to the extent that it actually
conflicts with federal law. Such a conflict arises when "compliance with
both federal and state regulations is a physical impossibility, or when
state law stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress." Hillsborough County, Fla. v.
Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985).
In Harris-Scaggs, Judge Adelman, faced with the exact issue presented
to this court, concluded that "FELA hardly compels the conclusion that
Congress meant to displace all relevant state law." Harris-Scaggs,
2 F. Supp. at 1184. As Harris-Scaggs notes, Gottshall demonstrates that FELA
incorporates common law rules by design. Id. This court agrees with
Harris-Scaggs that nothing in the statutory design of FELA or its
subsequent judicial interpretations compels a conclusion that FELA
"occupies the field" to such an extent that nonactionable FELA claims
cannot be pursued as state law torts. Id. at 1185.
Nor can this court conceive of any manner in which plaintiffs claim for
negligent and intentionally infliction of emotional distress would
interfere with FELA compliance or obstruct the legislative goals of that
statute. FELA is a fault based scheme, as are state tort laws. Id.
Accordingly, the court concludes that plaintiff's negligent and
intentional infliction of emotional distress claims are not preempted by
FELA. Defendant's motion to dismiss Counts III and IV is denied.
Finally, in Count V, plaintiff alleges a claim for disparate treatment.
Defendant argues the count should be dismissed for failure to identify the
federal law upon which plaintiff relies. Defendant is simply wrong. Under
federal notice pleading "plaintiff is not required to plead facts or legal
theories or cases or statues, but merely to describe his claims briefly and
simply." Shah v. Inter-Continental Hotel Chicago Operating Corp.,
314 F.3d 278, 282 (7th Cir. 2002). Defendant can "smoke out" ...