Reams v. Local 18, International Union of Operating Engineers

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

HEIDI REAMS, CASE NO. 3:21 CV 878

Plaintiff,

v. JUDGE JAMES R. KNEPP II

LOCAL 18, INTERNATIONAL

UNION OF OPERATING ENGINEERS,

MEMORANDUM OPINION AND

Defendant. ORDER

INTRODUCTION

In this matter, Plaintiff Heidi Reams brings state and federal law disability discrimination

claims against Defendant Local 18, International Union of Operating Engineers. (Doc. 12).

Pending before the Court is Defendant’s partial motion to dismiss.1 (Doc. 13). Plaintiff opposed

the motion (Doc. 14), and Defendant replied (Doc. 15). For the following reasons, the Court denies

Defendant’s motion.

BACKGROUND2

Plaintiff’s claims are supported by two related but distinct sets of facts. Plaintiff worked as

a clerk, an at-will position, for Defendant. (Doc. 12, at ¶¶ 13-15). A medical condition kept her

out of work, and she was fired shortly after returning from work. See generally id. at ¶¶ 16-66.

These facts are not put in issue by Defendant’s motion.

1. Though not captioned as such, Defendant’s motion attacks only one aspect of Plaintiff’s state

law claim, leaving undisturbed the remainder of her claims.

2. The Court is required to accept the allegations stated in the complaint as true, while viewing the

complaint in a light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73

(1984)

Plaintiff’s pension was “months away” from fully vesting when Defendant terminated her

employment. Id. at ¶ 67. She sought work as a union member “in order to save her pension.” Id. at

¶ 68. Defendant operates a hiring hall, referring union members to employers. (Doc. 13-1, at 12-

16). Plaintiff provided Defendant with a medical release that lifted all restrictions and said she

could “operate heavy equipment in a safety sensitive environment.” Id. at ¶¶ 70-71. One of

Defendant’s managers prevented Plaintiff’s application from being processed by grabbing the

medical release, telling Plaintiff her release was insufficient, and that she could not work as a union

member. Id. at ¶¶ 73-79.

Defendant filed a motion to dismiss attacking the state law claim stemming from Plaintiff’s

attempt to work as a union member. (Doc. 13). It argues the claim is preempted by federal labor

law. Id. at 1. Defendant’s motion initially attacked both collections of facts. Id. (“Plaintiff Heidi

Reams alleges that the union discriminated against her…when it: (1) terminated her employment;

and (2) refused to process her application to the Union’s hiring hall …These claims all fail as a

matter of law because they are completely preempted…”). But its reply abandons the attack on

claims stemming from Plaintiff’s termination. (Doc. 15, at 3) (“Here, the Union’s Motion seeks

the dismissal of all of Plaintiff’s § 4112 claims related to Reams attempt to work through the

Union’s hiring hall under two theories of federal preemption.”).

STANDARD OF REVIEW

When deciding a motion to dismiss under Federal Civil Rule 12(b)(6), the Court tests the

complaint’s legal sufficiency. The Court is required to accept the allegations stated in the

complaint as true, while viewing the complaint in a light most favorable to the plaintiff. Hishon v.

King & Spalding, 467 U.S. 69, 73 (1984); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Westlake

v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976).

Defendant bears the burden of showing Plaintiff’s claim is preempted. Int'l

Longshoremen's Ass'n, AFL-CIO v. Davis, 476 U.S. 380, 394-95 (1986).

DISCUSSION

Defendant argues Plaintiff’s state-law discrimination claim is preempted under two

different theories. (Doc. 13, at 6-16). First, Defendant argues Section 301 of the Labor

Management Relations Act (“LMRA”) preempts Plaintiff’s claim because it necessarily requires

interpreting a collective bargaining agreement. Id. at 6-12. Second, Defendant argues Garmon

preemption also bars Plaintiff’s claim. Id. at 12-16. For the following reasons, the Court finds

Defendant has not met its burden to show either theory of preemption bars Plaintiff’s state-law

discrimination claim.

Section 301 Preemption

Section 301 of the LMRA displaces any state-law cause of action for violation of a contract

between a labor organization and an employer. Caterpillar Inc. v. Williams, 482 U.S. 386, 394

(1987). “Section 301 governs claims founded directly on rights created by collective-bargaining

agreements, and also claims substantially dependent on analysis of a collective-bargaining

agreement.” Id. Its preemptive force reaches state-law tort claims when an “essential element of

the tort . . . require[s] interpretation of the labor agreement”. Smolarek v. Chrysler Corp., 879 F.2d

1326, 1330 (6th Cir. 1989).

But tort claims independent of a collective bargaining agreement are not preempted. Mattis

v. Massman, 355 F.3d 902, 905 (6th Cir. 2004). A claim is independent if it does not require

interpreting the terms of the collective bargaining agreement, and if the right claimed was created

by state law rather than the collective bargaining agreement. Id. at 906 (“In short, if a state-law

claim fails either of these two requirements, it is preempted by § 301.”). The Court examines each

prong of the preemption standard in turn.

Contract Interpretation

Defendant argues Plaintiff’s claim requires direct interpretation of some unspecified

provision of the collective bargaining agreement. (Doc. 13, at 8-10). But, looking at the elements

of Plaintiff’s claim, it becomes clear she has brought an independent claim.

Plaintiff claims she was barred from applying for employment as a union member because

of her disability. (Doc. 12, at ¶¶ 73-80). Under Ohio law, it is an unlawful discriminatory practice

for any employer to refuse to hire or otherwise discriminate against a person because of her

disability. Ohio Rev. Code § 4112.02(A). “In order to prevail in an employment discrimination

case, the plaintiff must prove discriminatory intent.” Mauzy v. Kelly Servs., Inc., 75 Ohio St. 3d

578, 583 (1996). Plaintiff must also show “a link or nexus between the discriminatory statement

or conduct and the prohibited act of discrimination”. Byrnes v. LCI Commc’n Holdings Co., 77

Ohio St. 3d 125, 130 (1996). Only in the absence of direct evidence of discrimination do the

familiar McDonnell Douglas factors become relevant. Kohmescher v. Kroger Co., 61 Ohio St. 3d

501 (1991).

These elements do not require the Court to interpret the collective bargaining agreement.

Defendant argues the “only way for the Court to determine whether Plaintiff was entitled to work

as a ‘union member’ or otherwise participate in the Hiring Hall is by reviewing and enforcing the

Hiring Hall rules regarding working as a Union member and participation in the Hiring Hall.”

(Doc. 13, at 9). Notably, Defendant does not identify any contractual provision which this Court

will need to interpret to evaluate Plaintiff’s claim. See Guidry v. Marine Engineers' Beneficial

Ass’n, 2007 WL 707511, at *6 (N.D. Cal.) (“Although MEBA asserts in conclusory fashion that

adjudication of the state-law claim would require the Court ‘to analyze . . . contractual provisions,’

it has failed to identify any contractual provision whose meaning is disputed. Nor apparently could

it do so, for Plaintiff’s right to be free from retaliatory action, which was conferred by the

California legislature via FEHA, does not depend on Plaintiff's contract with MEBA and could not

be abrogated by it.”). Plaintiff’s well-pled allegation is that Defendant prevented her from applying

for work, and thereby necessarily refused to hire her3, because of her disability. (Doc. 12, at ¶¶ 70-

79). That allegation, alone, alleges Plaintiff’s prima facie case under the direct evidence standard.

“Direct evidence is evidence which, if believed, proves the existence of improper discrimination

animus without inference or presumption.” Shaw v. Access Ohio, 118 N.E.3d 351, 358 (Ohio Ct.

App. 2018). Here, Plaintiff alleges she was unable to apply for a job with Defendant because

Defendant’s manager physically blocked her from applying. (Doc. 12, at ¶ 74). And the manager

did so, according to Plaintiff’s allegation, because he believed she was disabled. Id. at ¶¶ 76-78.

No inference is required to connect the alleged adverse action to the requisite discriminatory intent.

That is, taking Plaintiff’s account as true, she has pled allegations which satisfy the direct evidence

standard for proving disability discrimination, and that prima facie case is made without reference

to or interpretation of any collective bargaining agreement provision.

3. Interpreting other anti-discrimination law, persuasive authority supports finding Defendant

preventing Plaintiff from applying for employment is an adverse employment action. Robinson v.

Montgomery Ward & Co., 823 F.2d 793, 796 (4th Cir. 1987) (“Although a plaintiff who did not

apply for a position is not foreclosed from success in an employment discrimination action, in such

a situation the plaintiff must establish that she was inhibited from applying because of the

employer's discriminatory practices.”). This is a natural, logical extension of a statute forbidding

employers from refusing to hire for discriminatory reasons. Ohio Rev. Code. § 4112.02(A) (“It

shall be an unlawful discriminatory practice…[f]or any employer, because of…disability…to

refuse to hire…”).

Defendant begins to raise various defenses to that prima facie case in its briefing, including

that it properly sought medical clearance from Plaintiff, and that she may not have been entitled to

work as a union member. (Doc. 13, at 9). But these defenses rebut or contradict Plaintiff’s case –

they are not elements she has to prove herself. “It is irrelevant to the preemption question whether

or not the employer can defend by showing it had the right under the collective bargaining

agreement to do what it did.” O’Shea v. Detroit News, 887 F.2d 683, 687 (6th Cir. 1989). Those

defenses remain available at later stages of the litigation, but Defendant’s argument that they intend

to make this Court interpret the collective bargaining agreement to its advantage does not bar

Plaintiff from bringing her claim that, on its face, has nothing to do with any provision of that

agreement.

Defendant argues a Southern District of Iowa case supports their argument that state law

discrimination claims are preempted by federal labor law. (Doc. 13, at 10-12) (citing Pitts v.

Steamfitters Local Union No. 33, 718 F. Supp. 2d 1010, 1014 (S.D. Iowa 2010)). But that case is

distinguishable, and does not advance Defendant’s argument. The plaintiff in Pitts was already in

the union, and she alleged the union refused to refer her specific employment opportunities. 718

F. Supp. 2d at 1015-16. The court held determining whether an adverse employment action

occurred at all required interpreting the collective bargaining agreement. Id. at 1016. Here, the

Court does not have to interpret the collective bargaining agreement to determine whether Plaintiff

suffered an adverse action – she was not hired, and Defendant prevented her from even applying,

easily satisfying that element of her claim. See Ohio Rev. Code § 4112.02(A). Further, the Iowa

court applied the McDonnell Douglas framework in its analysis, whereas here Plaintiff appears to

have alleged a claim under the direct evidence standard. (Doc. 12, at ¶¶ 70-79). This makes the

elements of the prima facie case different, as Plaintiff has less work to do in dismissing alternative

explanations and motivations for Defendant’s actions. Mauzy, 75 Ohio St. 3d at 583 (“The function

of the McDonnell Douglas prima facie test is to allow the plaintiff to raise an inference of

discriminatory intent indirectly. It serves to eliminate the most common nondiscriminatory reasons

for the employer's action: lack of qualifications or the absence of a vacancy.”). In this case, as

discussed above, Defendant’s argument that it had a right to do what it did is a defense, rather than

a nondiscriminatory reason Plaintiff must disprove as part of her prima facie case. As such it

cannot be the basis for preempting Plaintiff’s claim. Therefore, Defendant has not met its burden

to show the claim is preempted.

Source of Right

A state law claim may also be preempted when a collective bargaining agreement creates

the right a plaintiff seeks to enforce. Mattis, 355 F.3d at 905. Defendant argues Plaintiff’s claim is

dependent upon rights created by the collective bargaining agreement. See Doc. 13, at 12 (“Even

when assigning all reasonable inferences in Reams’ favor, Reams’ Complaint makes clear that the

rights or benefits at issue – ‘to work as a union member’ – all emanate from the CBA.”). But

Plaintiff, as discussed above, does not need to prove she had a right to work as a union member.

She must prove Defendant did not hire her, and prevented her from applying, because of her

disability. See Byrnes, 77 Ohio St. 3d. at 130 (“[I]n a cause of action for age discrimination under

R.C. 4112.02 or 4112.14, when relying upon the direct evidence standard…an employee must

prove a causal link or nexus between evidence of a discriminatory statement or conduct and the

prohibited act of discrimination to establish a violation.”). Indeed, Defendant’s proffered case law

demonstrates how this case is not based on rights emanating from a collective bargaining

agreement. (Doc. 15, at 8). The Sixth Circuit held a nonunion employee’s lawsuit, alleging the

union deprived him of membership, “the opportunity to work in his trade, and the benefits of a

pension system into which he had paid the required contributions”, was based in the collective

bargaining agreement and thus within the scope of Section 301. Hill v. Iron Workers Loc. Union

No. 25, 520 F.2d 40, 41-42 (6th Cir. 1975). Defendant tries to connect these contract claims to

Plaintiff’s tort claim, but the analogy fails – for example, that Plaintiff sought employment with

Defendant to preserve her nearly-vested pension does not mean she is suing to enforce a

contractual right to a pension like the Hill plaintiff did. That is, Plaintiff’s personal motivations for

applying for work with Defendant do not transform the nature of the claim from a tort to a breach

of contract claim. Plaintiff’s right to be considered for employment free from invidious disability

discrimination plainly emanates from Ohio statutory law, not the collective bargaining agreement.

See Ohio Rev. Code § 4112.02(A). The case law presented by Defendant does not persuade this

Court otherwise.

Therefore, for the reasons discussed above, Defendant has not met its burden to show

Section 301 preempts Plaintiff’s state law disability claim.

Garmon Preemption

Defendant also argues Garmon preemption bars Plaintiff’s state law disability claim.

“When an activity is arguably subject to § 7 or § 8 of the [National Labor Relation] Act, the States

as well as the federal courts must defer to the exclusive competence of the National Labor

Relations Board if the danger of state interference with national policy is to be averted.” San Diego

Bldg. Trades Council, Millmen’s Union, Loc. 2020 v. Garmon, 359 U.S. 236, 245 (1959).

Defendant argues Plaintiff’s claim is, in substance, a claim of breach of Defendant’s duty of fair

representation, which is rooted in Section Nine of the National Labor Relations Act. (Doc. 13, at

13) As an initial matter, the Court notes Garmon preemption does not reach claims related to the

duty of fair representation:

Plaintiff mischaracterizes this latter preemption argument as involving Garmon

preemption, see San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79

S.Ct. 773, 3 L.Ed.2d 775 (1959). Garmon preemption concerns federal protection

of the primary jurisdiction of the National Labor Relations Board. In Garmon, the

Supreme Court held that “[when an activity is arguably subject to § 7 or § 8 of the

[National Labor Relations] Act, the States as well as the federal courts must defer

to the exclusive competence of the National Labor Relations Board if the danger of

state interference with national policy is to be averted].” 359 U.S. at 249, 79 S.Ct.

at 780. The purpose of the Garmon rule, thus, is to ensure that disputes within the

Board's expertise are first committed to it. Brown, supra, 104 S.Ct. at 3186. See

also, Jones v. Truck Drivers Local Union No. 299, 838 F.2d 856, 874 (6th Cir.1988)

(Merritt, J., concurring in part). However, the Supreme Court made clear in Vaca

v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), that the NLRB has no

special expertise over claims of a union's breach of its duty of fair representation,

and thus, Garmon preemption is inapplicable to this class of cases. 87 S.Ct. at 912–

14.

Bredesen v. Detroit Fed’n of Musicians, Loc. No. 5, Affiliated with Am. Fed’n of Musicians, 165

F. Supp. 2d 647, 653 n.11 (E.D. Mich. 2001).

Nonetheless, claims that fall within a union’s duty of fair representation are preempted.

Maynard v. Revere Copper Products, Inc. 773 F.2d 733, 735 (6th Cir. 1985). But here, there can

be no duty of fair representation claim because Defendant owed Plaintiff no duty. The duty of fair

representation is owed only to members of a collective bargaining unit. McTighe v. Mechanics

Educ. Soc. of Am., Loc. 19, AFL-CIO, 772 F.2d 210, 213 (6th Cir. 1985). Plaintiff was never an

employee within the bargaining unit Defendant represents, therefore it never owed her a duty of

fair representation, and that duty cannot then preempt her claim.

Defendant also points to Supreme Court precedent, but the present case is distinguishable.

The Court recognizes the Supreme Court has held a union, operating a hiring hall, which denies

employment through unfair, irrelevant, or invidious practices violates its duty of fair

representation. Breininger v. Sheet Metal Workers Int'l Ass'n Loc. Union No. 6, 493 U.S. 67, 78

n.3 (1989). But again that case addresses the hiring hall’s treatment of employees within the

bargaining unit which it refers out to other employers, see id., rather than here where Defendant’s

alleged discriminatory conduct prevented Plaintiff from ever joining the bargaining unit. The duty

of fair representation only preempts claims where it exists, and at this stage Defendant has not

shown it had a duty to fairly represent Plaintiff, as a nonemployee. Since Defendant has not shown

it had such a duty to Plaintiff, that duty cannot preempt Plaintiff’s claim.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants’ Motion to Dismiss (Doc. 13), be, and the same hereby is,

DENIED.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE