Reply Brief — McCormick v. AT&T Technologies, Inc.

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No. 91-515 DEC 20 7891

OFFICE OF THE CLERK

IN THE RE LNSL

Supreme Court of the United States

OCTOBER TERM, 1991

WILLIAM T. McCorMICck,

Petitioner,

Vv.

AT & T TECHNOLOGIES, INC., and CAMERON ALLEN,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

REPLY BRIEF FOR PETITIONER

THOMAS H. ROBERTS

2nd Floor, Suite A

33 S. 13th Street

Richmond, VA 23219

MARSHA S. BERZON

177 Post Street

San Francisco, CA 94108

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 2000!

@ AGE. 00

TABLE OF AUTHORITIES

CASES Page

Allis Chalmers v. Lueck, 471 U.S. 202 (1985) ]

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). 2, 4,

Cook v, Lindsay Olive Growers, 911 F.2d 233 (9th

Cir. 1990) .............. ut piesandasonctsanciecenen ees 9

Electrical Workers v. Hechler, 481 U.S. 851

(1987) RO Sade on 5

For v. Parker Hannifan Corp., 914 F.2d 795 (7th

Cir. 1990) eat tanta’ 10

Galvez v. Kuhn, 933 F 24 773 (1991) 2g . mae

Hanks v. General Motors Corp., 859 F. 2d 67. (8th

Cir. ath SRP bEas chatacters seta 2,9

Hanks v. General Motors Co orp., 906 F. 2d B41 (8th

CAP, BDDOD aoincccccnisciinevscedoccencasssssenaeee 1,2,9

Johnson v. Anheuser Busch, Ine., 876 F.2d 620

(8th Cir. 1989) _... scesicveccagenddaieuiaslce semen

Johnson v. Beatrice Foods Co., 921 F.2d 1015

(10th Cir. 1990) ae we SS

Knafel v. Pepsi-Cola Bottlers, 899 F.2d 1473 (7th

Cir. 1990) . pisisitshdaR ee 9

Krashna v. Oliv er Realty, Ine.. 895 F.2d 111 (3rd

Cir. 1990) . ee 10

Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988) - ; 4

Lepore v. Ramsey, 1991 U.S. App. Lexis 2391]

(4th Cir. Oct. 7, 1991) 7,10

Lingle v. Norge Division of Magic Chef, Inc., 486

U.S. 399 (1988) 1.20

Local No. 57 v. Bechtel Power Corp., 434 F.2d 884

(10th Cir. 1987) 4

Magerer v. John Serton & Co., 912 F.2d 525 (1st

Cir. 1990) . < 3

Miller v. AT&T Network Services, 850 F.2d 543

(9th Cir. 1988) ) 1,9

Milne Employees Association v. Sun Carriers, Inc.,

F.24 ——— (9th Cir. Nov. 20, 1991) ®

O’Shea v. Detroit News, 887 F.2d 683 (6th Cir.

1989) 4.9

Smith ». Colgate Palmolive Co., 943 F.2d 764

(7th Cir. 1991) 4

Steelworkers v. Rawson, -—~ U Ss. omen 110 S. Ct.

1904 (1990)

iii

TABLE OF AUTHORITIES—Continued

Utihty Workers v. Southern California Edison,

652 F.2d 1083 (9th Cir. 1988)

White v. National Steel Corp., 938 F.2d 474 (4th

Cir.), cert. denied, U.S. , 60 L.W. 3375

(1991)

STATUTES

Labor Management Relations Act

§301, 29 U.S.C. § 185 (a)

Page

passim

REPLY BRIEF FOR PETITIONER

Respondents’ brief in opposition is principally devoted

to the proposition that the many federal judges, including

the three dissenting judges in this case below, who per-

ceive conflict and confusion in the courts of appeals on

two Labor Management Relations Act $ 301 preemption

questions raised in cur certiorari petition are unable to

read and understand the decisions that appear in the

Federal Reporter Second.

Compare Brief for Respondents in Opposition (“Br.

Opp.”) at 1, 7, 12 (contending that there is no circuit

conflict over either the general legal standard for § 301

preemption cases or the application of that standard to in-

tentional infliction of emotional distress tort cases) with

Pet. App. 14a (the analytic disagreement between the ma-

jority and the dissent in this case “reflects a wider inter-

circuit conflict on this issue that has developed in recent

vears as the lower federal courts have sought to apply the

Supreme Court precedents.”); Galvez v. Kuhn, 933 F.2d

773, 775 (1991) (despite “authoritative statements to

guide our way |in| .. . Lingle [v. Norge Division of

Magic Chef, Inc., 486 U.S. 399 (1988)] ... [i]n reality

section 301 has been the precipitate of a series of often

contradictory decisions. .. .”); Johnson v. Beatrice Foods

Co., 921 F.2d 1015, 1021 (10th Cir. 1990) (“other cir-

cuits have reached varying results when applying the

Allis Chalmers |Corp. v. Lueck, 471 U.S. 202 (1985) |

and Lingle holding to state tort claims for intentional in-

fliction of emotional distress”) ; id. (referring to the “‘con-

flicting results” among the circuits in such preemption

eases); Hanks v. General Motors Corp., 906 F.2d 341,

344 n.4 (&th Cir. 1990) (“Inasmuch as the opinion in

Miller v. AT&T Network Services [850 F.2d 543, 550

(9th Cir. 1988)] . . . would suggest a result different

from the one indicated [with regard to intentional in-

fliction of emotional distress tort actions] ... we dis-

agree.”’)

Given the inherent implausibiilty of respondents’ thesis

it is not surprising that it is respondents—not the fed-

eral appellate judiciary—who are guilty of misreading

and misunderstanding the pertinent court of appeals § 301

preemption cases.

1. First, contrary to respondents’ submissions (Br.

Opp. at 8-9), there is indubitably a square circuit conflict

as to whether § 301 preemption can properly be based on

a defense that requires interpretation of a labor contract.

To begin at the most obvious point, the Eighth Circuit

has repeatedly, explicitly, and squarely held that § 301

preempts state causes of action not only when the plain-

tiff’s case as articulated in the complaint necessarily de-

pends upon construction of the collective bargaining

agreement, but also when it is anticipated that there will

be a defense raised that will require interpretation of the

agreement. Hanks v. General Motors Corp., 859 F. 2d

67, 70 (8th Cir. 1988) (Hanks 1); Johnson v. Anheuser

Busch, Inc., 876 F.2d 620, 623 (8th Cir. 1989); Hanks v.

General Motors Corp., supra, 906 F.2d at 344 (Hanks

Respondent would blunt the force of these three square

holdings by distinguishing Hanks I as a case in which

there was federal diversity jurisdiction, so that “any em-

ployer defenses grounded in section 301 preemption’

thereby became pertinent. Br. Opp. at 8 n.2. But nothing

in Hanks I (or Hanks IJ) indicates that the relevance of

‘In so doing, the Eighth Circuit relied upon precisely the passage

from Lingle, supra, (486 U.S. at 407) that we identified in our

certiorari petition, and that Judge Phillips noted in his dissent, as

the probable source of the confusion in the lower federal courts con-

cerning the claim-centered nature of § 301 preemption. See Pet. at

14-16; Pet. App. 24a-25a n.2; compare Hanks I, 859 F.2d at 69.

While it is gratifying that respondents agree with us, and with

Judge Phillips, that it is “obvious” that this passage could not have

been intended to qualify or overrule the explicit holding of Cater-

pillar Inc. v. Williams, 482 U.S. 386 (1987) (Br. Opp. at 11), re-

spondents’ concession in a bricf is not binding judicial precedent,

and consequently cannot alone cure lower court misapprehen-

sions of Lingle in this regard. Rather, only a clarification from this

Court after plenary review will have that effect.

a defense to determining a § 301 preemption issue turns

on whether there is both diversity and federal question

jurisdiction or only federal question jurisdiction.2. And the

Kighth Circuit, later, in Johnson v. Anheuser Busch,

supra, both quoted and applied its holding that defenses

must be considered in determining § 301 preemption to

a case that, like this one, plainly did not rest on any

claim of diversity jurisdiction. 876 F.2d at 623: id. at 624

(anticipating that employer and co-workers would defend

an intentional infliction of emotional distress cause of

action relating to false accusations leading to arrest, pros-

ecution, and discharge on the basis that the “discharge

was warranted under the collective bargaining agree-

ment,” and finding that “|t]herefore, section 301 pre-

empts this count.’’)

Additionally, and again contrary to respondents’ pres-

entation (Br. Opp. at 8), the First and Ninth Circuits—

as well as the Fourth and Eighth Circuits—have relied

upon anticipated defenses in determining $ 301 preemp-

tion questions generally. Magerer v. John Sexton & Co..

912 F.2d 525, 527 (1st Cir. 1990); Laws v. Calmat, 852

F.2d 430, 432, 433 (9th Cir. 1988).°

* Indeed, the removal in Hanks was based on both diversity and

federal question jurisdiction, and the appellate opinions indicate

only that General Motors claimed diversity jurisdiction, not that

jurisdiction was indeed proper on that basis. 859 F.2d at 68: 906

F.2d at 342.

% Although respondents contend otherwise, the First and Ninth

Circuits clearly have relied upon proffered defenses in concluding

that state causes of action cannot go forward because the ultimate

resolution of the case is likely to involve interpretation of the

collective bargaining agreement.

The First Circuit, for example, in Magerer v. John Sexton & Co.,

912 F.2d 525 (1st Cir. 1990), held preempted under $301 a cause

of action that, as pleaded, was identical to the retaliatory discharge

claim involved in Lingle, supra. The retaliatory discharge statute in

question in Magerer, however, permitted a collective bargaining

agreement to “waive rights granted by this section.” 912 F.2d at

529. Magerer held the mere availability of this waiver defense de-

terminative in holding the cause of action entirely preempted by

In contrast, the Sixth and Tenth Cases have emphati-

cally eschewed reliance on anticipated defenses in deter-

mining § 301 preemption questions generally. See O’Shea

v. Detroit News, 887 F.2d 688, 687 (6th Cir. 1989) ;

Local No. 57 v. Bechtel Power Corp., 834 F.2d 884, 889

(10th Cir. 1987).

Thus, respondents proffered distinction of Hanks would

not, even if accurate, eliminate the deep cleavage in the

circuits in this regard.

2. Indeed, that cleavage has been, if anything, deep-

ened by the recent acceptance of a similar distinction by

the Seventh Circuit. Smith v. Colgate Palmolive Co., 943

F.2d 764, 770-71 (7th Cir. 1991) (acknowledging that

Caterpillar Inc, v. Williams, supra, establishes a claim-

centered principle, but maintaining that it is permissible

to “look|| beyond the plaintiffs’ complaint to the de-

fenses” in determining whether a state cause of action is

substantvely precluded).

After Smith, it appears that there are now three dif-

ferent views among the federal courts of appeal, rather

than only two, on the first question presented in our

certiorari petition, with two circuits holding that defenses

never are relevant to $301 preemption, four circuits

holding that such defenses always are relevant, and one

circuit Maintaining that whether or not such defenses are

relevant depends upon whether the question is jurisdic-

tional or substantive.

3. The distinction suggested by respondents and _ ac.

cepted by the Seventh Circuit in Smith between § 301

$301, with the result that the plaintiff had no opportunity to litigate

whether or not any waiver had in fact occurred and, if not, to go

forward on the complaint as pleaded. Similarly, in Utility Workers

v. Southern California Edison, 852 F.2d 1083, 1086 (9th Cir. 1988)

and Laws v. Calmat, supra, 852 F.2d at 432-33, the Ninth Circuit

relied upon a potential contractual waiver defense as the basis for

finding preempted causes of action premised upon state constitutional

privacy protections and not reliant in any way upon any contractual

considerations.

preemption for jurisdictional purposes and § 301 preemp-

tion for substantive purposes is, moreover, flatly incon-

sistent with this Court’s cases.

Of the five cases in this Court concerning § 301 pre-

emption of state causes of action, three have arisen in

circumstances in which the preemption issue had no juris-

dictional consequences. Allis Chalmers v. Lueck, supra

(state court case, not removed); Lingle, supra (case re-

moved to federal court on the basis of diversity of citi-

zenship and then dismissed on § 301 preemption grounds) ;

Steelworkers v. Rawson, USS. , 110 S. Ct. 1904

(1990) (state court case, not removed).

The two cases that did decide jurisdictional questions—

Caterpillar, Inc. v. Williams, supra, and Electrical Work-

ers v. Hechler, 481 U.S. 851 (1987)—relied directly

upon Allis Chalmers v. Lueck and did not purport to ap-

ply a different preemption standard. See, e.g., Electrical

Workers, 481 U.S. at 859 (applying “the principle set

forth in Allis Chalmers” to determine “if respondent’s

claim is sufficiently independent of the collective bargain-

ing agreement to withstand the preemptive force of

§ 301”); Caterpillar, 481 U.S. at 394-395 (applying

standard developed in Allis Chalmers and applied in

Electrical Workers).

As the concordance between these two sets of cases in

this Court indicates, there is no basis in § 301 preemption

law for respondents’ suggestion that there is a differeiit

‘301 preemption standard where the issue is “jurisdic-

tional” and where the issue is “substantive.”

4. Respondents also maintain that even if there is

discord in the circuits on the proper analytic approach to

- 301 preemption cases generally, the Fourth Circuit, in

leciding whether the various state tort causes of action

yeaded by Mr. MeCormick are all preempted, did not

smnbrace or apply the proposition that anticipated de-

fenses are pertinent. Br. Opp. 11-12.

The dissenters in this case obviously did not so under-

stand the majority opinion. That is why the dissent de-

voted nearly twenty pages to explaining a “disagreement

[that] . .. is fundamental” with the majority’s entire

mode of preemption analysis. Pet. App. 14a. As that

dissent cogently explained, the majority approach does in

fact turn preemption of the intentional infliction of emo-

tional distress claim here on the defendants’ probable de-

fense, rather than only upon the plaintiff’s necessary re-

liance on the collective bargaining agreement in his af-

firmative claims:

The majority ... essentially finds this claim pre-

empted because... its proof necessarily will require

proof of “wrongful conduct” by the employer. From

this, the reasoning proceeds that inevitably this will

require proof of all the circumstances relevant to the

conduct’s occurrence; that one of the circumstances

will be the labor contract between the parties; that

this will require interpretation of that contract, and

that that does it: the claim is preempted ....

The |majority’s] analysis of how litigation of this

claim in a civil action probably would proceed is

likely an accurate one, but... it is irrelevant to the

much simpler, true preemption issue: whether

McCormick’s well-pleaded state-law tort claim locates

the duty allegedly violated by AT&T in their labor

contract or in some source of legal duty independent

of that contract. The answer to that issue is plain:

in an independent source, Virginia tort law. Spe-

cifically, in the duty imposed by that body of law

upon all persons, running to society in general and

not dependent upon any employment relationships,

(1) not to engage in intentional or reckless conduct

(2) that is outrageous and intolerable, offending gen-

erally accepted standards of decency and (3) that

cuuses ‘4) severe emotional distress to a plaintiff. . .

McCormick’s claim obviously does not seek to locate

any such duty, either expressly or by necessary im-

plication, in any special obligation imposed on AT&T

by it labor contract, as did the preempted claims, for

example, in Lueck, Hechleyv, and Rawson.

The fact that in defending against the claims .. .

AT&T may be entitled... to rely on provisions of its

labor contract to demonstrate that its conduct in con-

formity with them could not be considered “out-

rageous” is at this point in. the process beside the

point. That would be to invoke a federal defense

(the labor contract’s terms) .... [Pet. App. 28a-

29a. |

See also id. at 30a-32a (similar analyses of the remain-

ing state tort causes of action).

Moreover, in two cases decided since this one, the

Fourth Circuit itself has confirmed, relying on the deci-

sion below, that its circuit law does indeed look to de-

fenses to determine § 301 preemption issues. See White

v. National Steel Corp., 988 F.2d 474, 483 (4th Cir.),

cert. denied, U.S. ——, 60 L.W. 3375 (1991) (de-

termining that because plaintiffs’ claims hinge on oral

agreements separate from the collective bargaining agree-

ment and because “National’s defenses ... are not based

in a collective bargaining agrement ... nor must a fact-

finder interpret any provisions of a collective agreement

in order to determine these issues|, p|laintiffs’ asserted

rights are, therefore, not preempted by section 301.’ ;

Lepore v. Ramsey, 1991 U.S. App. Lexis 23211 (4th Cir.,

Oct. 7, 1991) (emphasis supplied) (“Under the McCor-

mick reasoning, it would be necessary in assessing the

fauit of all of these defendants under these tort claims

to interpret the provisions of the collective bargaining

agreement that defined their duties to Lepore allegedly

violated, or that gave rise to defenses to those claims.

On that basis, on the authority of McCormick, all these

claims were properly held preempted. .. .’”)4

Thus, while respondents may not understand the de-

cision below as holding that ‘an employer’s defenses may

4 Lepore is an unpublished opinion. Fourth Circuit rules dis-

courage but do not forbid citation of unpublished opinions within

the Fourth Circuit, and do not specify whether such opinions can be

cited outside that circuit. I.0.P. 36.5 of the United States Court

of Appeals for the Fourth Circuit. For this Court’s convenience,

we have filed copies of the Lepore decision with the Clerk’s office.

For present purposes, the importance of Lepore is not as precedent,

but to demonstrate that, unless this case is reviewed and reversed,

cases will continue to be decided in the Fourth Circuit on the basis

of a § 301 preemption analysis in conflict with that of other circuits.

establish complete preemption under section 301” (Br.

Opp. at 7), the Fourth Circuit Judges who participated

in the McCormick decision certainly do, and are applying

that principle to the cases before them.

5. Finally, respondents characterize the courts of ap-

peals opinions on § 301 preemption of intentional inflic-

tion of emotional distress claims in particular as harmoni-

ous, maintaining that the seemingly conflicting legal

standards applied by the various circuits are simply

“slight variations in verbal formulas.” Br. Opp. at 13-14.

But these admitted variations are not, as respondents

would have it, simply different ways of saying the same

thing; rather, there is a difference of principle. That

difference concerns whether such cases of action are pre-

empted, as the Fourth, Fifth, Tenth (and to some extent

the Seventh and Ninth Circuits) maintain, merely be-

cause the employer can argue that its behavior is not

“outrageous” since the actions in question are consistent

with the collective bargaining agreement, or whether, in-

stead, as the Third, Sixth and Eighth Circuits hold, that

possible contention is not a basis for § 301 preemption.

See Pet. 16-23.

Further, as we demonstrated in some detail in our cer-

tiorari petition, this difference in the governing standards

dictates different results in identical cases. Thus, the

state tort cause of action in this case could not have

been declared preempted under the standards applied

in the Third, Sixth, and Eighth Circuits, probably would

not have been declared preempted under the Ninth Cir-

cuit’s most recent cases, and may or may not have been

held preempted in the Seventh Circuit. Pet. at 18-19, 21

n.7, 22 n.9, 23."

*Sinee the certiorar? petition was filed, the Ninth Cireuit has

once more held that intentional infliction of emotional distress claims

may be preempted or not, depending upon whether the collective

bargaining agreement in some specific way addresses the validity of

the actions claimed to be tortious. Milne Employees Association v.

Sun Carriers, Inc., —— F.2d ——~, —— (9th Cir. Nov 20, 1991).

Indeed, conflict in result in indistinguishable cases is

not merely hypothetical but has already occurred. For

example, the Eighth Circuit in Hanks IJ and JJ, and the

Sixth Circuit in O'Shea v. Detroit News, supra, held not

preempted state causes of action for intentional infliction

of emotional distress premised upon job assignments al-

leged to have resulted in severe emotional injury." In both

instances, the courts of appeals recognized that the em-

ployer’s contention that the job assignment was appropri-

ate under the collective bargaining agreement might be

relevant in determining the intentional-infliction-of-emo-

tional-distress “outrageous conduct” element, and that the

assignment could have been grieved under that agree-

ment. Hanks II, 906 F.2d at 344-45; O’Shea, 887 F.2d

at 686-87; see also Knafel v, Pepsi-Cola Bottlers, 899

F.2d 1473, 1476, 1488 (7th Cir. 1990) (finding non-

preempted an_ intentional-infliction-of-emotional-distress

cause of action premised in part upon job assignment).

In contrast, the Ninth Circuit in Miller v. AT&T Net-

work Services, supra, preempted an intentional-infliction-

of-emotional-distress claim premised upon a job assign-

ment known to endanger the plaintiff’s health on the same

theory adopted by the Fourth Circuit here, viz., that

the resolution of the “outrageous conduct” element of

such causes of action may be influenced by the employer’s

claim that its action did not violate the collective bar-

gaining agreement. 850 F.2d at 50-51; see also, pre-

empting a similar job assignment-related cause of action,

Cook v. Lindsay Olive Growers, 911 F.2d 233, 239 (9th

Cir. 1990) ; compare Pet. App. 10a.’

Similarly, the Tenth Circuit in Johnson v. Beatrice

Foods, supra, preempted allegations of name calling,

* Respondent’s attempt to find a “recurring pattern” in the facially

inconsistent court of appeals intentional infliction of emotional dis-

tress/§ 301 preemption cases tellingly leaves out both Hanks and

O'Shea, Br. Opp. at 13.

*The Fourth Circuit majority, in this case, expressly relied on

Miller. See Pet. App. lla.

surveillance, shunning, public ridicule, verbal abuse,

harassing job assignments, and other harassing behavior

both in and out of the workplace that focussed on the

manner of treatment, not its substance. 921 F.2d at

1017-18. See also Lepore v. Ramsey, supra (intentional

infliction of emotional distress claim based on verbal sex-

ual harassment preempted). These allegations are indis-

tinguishable for § 301 preemption purposes from the al-

legations of harassing behavior underlying the nonpre-

empted intentional-infliction-of-emotional-distress causes

of action in, for example, Krashna v. Oliver Realty, Inc.,

895 F.2d 111 (8rd Cir. 1990) (racial insults); Gaivez

”. Kuhn, supra (racial slurs); and Fox v. Parker Han-

nifan Corp., 914 F.2d 795, 802 (7th Cir. 1990) (un-

specified harassing behavior in and out of the workplace).

As these examples illustrate, unless this Court grants

certiorari in this case, the issuance of conflicting court

of appeals’ decisions such as those we have enumerated

above will continue apace.

CONCLUSION

For the reasons stated above and in our Petition for

Writ of Certiorari, this Court should grant certiorari in

this case and reverse the decision below.

Respectfully submitted,