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Boldt v. Northern States Power Co.

United States District Court, D. Minnesota

May 2, 2017

Wade Boldt, Plaintiff,
Northern States Power Company, a Minnesota Corporation, d/b/a/ Xcel Energy, Defendant.

          Jenny M. Helling, Esq., and Nicholas G. B. May, Esq., Fabian May & Anderson, PLLP, Minneapolis, MN, on behalf of Plaintiff.

          Michael J. Moberg, Esq., and Alyssa M. Toft, Esq., Jackson Lewis P.C., Minneapolis, MN, on behalf of Defendant.




         On 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.


         In 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.[1] Boldt argues that the Court's July 18 Order erroneously concluded that Boldt's MHRA claims are preempted.

         A. Parties

         NSP, a 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. ¶¶ 3-4.

         B. Labor Agreement

         As a 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”).[2] The Labor Agreement includes the following provisions related to NSP's security, drug screening, and safety requirements:

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 site.
10.8 All personnel on the job agree to submit to job site personnel and/or vehicle inspections as security experience may require.

         Labor Agreement ¶¶ 5.1, 5.9, 10.8.

         C. Policies and Regulations Governing Unescorted Access to the Nuclear Plant

         Boldt's 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. Id.

         NSP 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 substance abuse;
(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.

         The NRC 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 fitness-for-duty information”).

         The NRC 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. § ...

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