United States District Court, D. Minnesota
M. Helling, Esq., and Nicholas G. B. May, Esq., Fabian May
& Anderson, PLLP, Minneapolis, MN, on behalf of
Michael J. Moberg, Esq., and Alyssa M. Toft, Esq., Jackson
Lewis P.C., Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
February 16, 2017, the undersigned United States District
Judge heard oral argument on Defendant Northern States Power
Company d/b/a Xcel Energy's (“NSP”) Motion
for Judgment on the Pleadings [Docket No. 25]. Plaintiff Wade
Boldt (“Boldt”) opposes the Motion. For the
reasons set forth below, NSP's Motion is granted.
January 2016, Boldt sued NSP in Minnesota state court
alleging disability discrimination under the Minnesota Human
Rights Act (“MHRA”), Minn. Stat. §§
363A.08 and 363A.17. See Compl. [Docket No. 1,
Attach. 1]. NSP removed this action to federal court, arguing
that Boldt's claims are preempted by the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 141,
et seq., and the Energy Reorganization Act
(“ERA”), 42 U.S.C. § 5801, et seq.
See Notice of Removal [Docket No. 1] ¶ 6. Boldt
then moved to remand the case back to state court.
See Mot. Remand [Docket No. 8]. On July 18, 2016,
this Court denied the motion to remand, holding that
Boldt's MHRA claims were completely preempted by the LMRA
and by federal law governing nuclear safety. See
Mem. Op. & Order [Docket No. 17] (“July 18
Order”). NSP now moves for judgment on the pleadings,
arguing that the preemption analysis in the July 18 Order
applies with equal force to the motion for judgment on the
pleadings. Boldt opposes the motion with respect to Count I
of the Complaint, which asserts a claim for disability
discrimination based on a perceived disability of alcoholism
under Minn. Stat. § 363A.17. Boldt argues that the
Court's July 18 Order erroneously concluded that
Boldt's MHRA claims are preempted.
Minnesota corporation, operates the Prairie Island Nuclear
Generating (“PING”) Plant near Red Wing,
Minnesota. Compl. ¶¶ 2, 4. Boldt is a Special
Construction Laborer and member of the Laborers Local 563,
which is an affiliate of the Minnesota State Building and
Construction Trade Council. Id. ¶¶ 3, 17.
Beginning in 2002, Boldt's union assigned him to
temporary projects at NSP's PING Plant. Id.
union laborer, Boldt's work on NSP's property was
governed by a labor agreement between NSP and Boldt's
union (the “Labor Agreement”). Id.
¶ 17; Helling Aff. [Docket No. 9] Ex. A (“Labor
Agreement”). The Labor Agreement includes the following
provisions related to NSP's security, drug screening, and
5.1 Employees must meet all security and drug screening
requirements as set forth by the Company[.]
5.9 The Employer and Employees shall abide by all Company
safety regulations, policies, and plant-specific or
site-specific work rules as may be applicable to the work
10.8 All personnel on the job agree to submit to job site
personnel and/or vehicle inspections as security experience
Agreement ¶¶ 5.1, 5.9, 10.8.
Policies and Regulations Governing Unescorted Access to the
work at the PING Plant required him to maintain unescorted
nuclear access authorization to the plant. Compl. ¶ 4.
This authorization required Boldt to comply with NSP's
Access Authorization Program (“AAP”), which
included a Fitness for Duty (“FFD”) Policy.
administered the AAP and FFD Policy pursuant to federal
statutes and regulations governing the safety of operations
at nuclear power plants. Id. Specifically, the
Atomic Energy Act (“AEA”), ERA, and regulations
promulgated by the Nuclear Regulatory Commission (the
“NRC Regulations”) require nuclear licensees such
as NSP to establish and administer an AAP that provides
“high assurance” that individuals granted
unescorted access to the nuclear power plant “are
trustworthy and reliable, such that they do not constitute an
unreasonable risk to public health and safety or the common
defense and security, including the potential to commit
radiological sabotage.” 10 C.F.R. § 73.56(c).
Nuclear licensees are also required to implement an FFD
Program that must:
(a) Provide reasonable assurance that individuals are
trustworthy and reliable as demonstrated by the avoidance of
(b) Provide reasonable assurance that individuals are not
under the influence of any substance, legal or illegal, or
mentally or physically impaired from any cause, which in any
way adversely affects their ability to safely and competently
perform their duties;
(c) Provide reasonable measures for the early detection of
individuals who are not fit to perform the duties that
require them to be subject to the FFD program; [and]
(d) Provide reasonable assurance that the workplaces subject
to this part are free from the presence and effects of
illegal drugs and alcohol . . . .
10 C.F.R. § 26.23.
Regulations also mandate nuclear licensees to
“implement drug and alcohol testing programs” and
“administer drug and alcohol tests . . . [i]n response
to an individual's observed behavior or physical
condition indicating possible substance abuse or after
receiving credible information that an individual is engaging
in substance abuse.” 10 C.F.R. § 26.31(a), (c)(2);
see also 10 C.F.R. § 26.69
(“Authorization with potentially disqualifying
Regulations additionally set forth detailed requirements
related to fitness-for- duty determinations, including the
roles of Medical Review Officers (“MRO”) and
Substance Abuse Experts (“SAE”) in making the
determinations. See 10 C.F.R. §§
26.181-189. The regulations provide that if an employee
“may be in violation of the licensee's . . . FFD
policy or is otherwise unable to safely and competently
perform his or her duties, ” a “determination of
fitness must be made by a licensed or certified
professional.” 10 C.F.R. § 26.189(a). The
SAE's role “is to protect public health and safety
and the common defense and security by professionally
evaluating the individual and recommending appropriate
education/treatment, follow-up tests, and aftercare.”
10 C.F.R. § ...