Petition for Writ of Certiorari — Chrysler Corp. v. Smolarek

Supreme Court brief1989

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Inu the Supreme Court of the United States

OCTOBER TERM, 1989

CHRYSLER CORPORATION, ET AL.,

PETITIONERS

Vv.

STANLEY SMOLAREK AND RALPH FLEMING,

RESPONDENTS

PETITION. FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THOMAS G. KIENBAUM

Counsel of Record

THEODORE R. OPPERWALL

ROBERT W. POWELL

Dickinson, Wright, Moon,

Chrysler Corporation Van Dusen & Freeman

12000 Chrysler Drive 800 First National Building

Highland Park, Michigan 48228 Detroit, Michigan 48226

(313) 956-5462 (313) 223-3500

WILLIAM T. MCLELLAN

BOWNE OF DETROIT

610 W. CONGRESS - DETROIT, MICHIGAN 48226 - (313) 964-1330

QUESTION PRESENTED

Whether Section 301 of the Labor Management Relations

Act, 29 U.S.C. §185, preempts a state-law handicap discrimina-

tion claim based on an employer’s alleged refusal to accommo-

date an employee’s handicap where such accommodation is

required only by a collective bargaining agreement, not by state

law, and would require interpretation of the agreement.

PARTIES TO THE PROCEEDING

- AND RULE 28.1 STATEMENT

In addition to parties named in the caption, Louis Eovaldi

and Lyndon Verlyndon were appellees in the court of appeals and

are petitioners in this Court. A list of petitioner Chrysler Corpora-

tion’s subsidiaries (other than wholly-owned subsidiaries) and

affiliate corporations is set forth at App. F, infra, 53a.

iii

TABLE OF CONTENTS

cp Ee

The Michigan Handicapper’s Civil Rights Act . .

The Sixth Circuit Decision ..................

a. The Majority Opinion ...................

b. The Dissenting Opinion..................

REASONS FOR GRANTING THE PETITION .....

The Court of Appeals Has Decided An Important

Federal Question In A Way That Cannot Be

Reconciled With This Court’s Decisions And

That Threatens To Disrupt Federal Labor Rela-

Federal law and policy preempt state claims

that are rooted in or purport to define the

meaning of collectively bargained terms and

conditions of employment ................

Resolution of respondents’ claims under state

law would destroy the uniformity essential to

interpretation of the collective bargaining

EEE a arg arene is

Resolution of respondents’ claims under state

law would frustrate the strong federal policy

requiring settlement of labor disputes through

Cee ri Le sth dcuhe sus ciee sees

The Court of Appeals’ Approach Conflicts With

Neha ceneaeccsndnnceeseses

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TABLE OF CONTENTS — (Cont'd) ©

Page

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a own ken nekdne ee cosehase Ghkerele 48a

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TABLE OF AUTHORITIES .

CASES: Page

Ackerman v. Western Electric Co., 860 F.2d 1514 (9th

ohn GAMEWS d sibs UR ace oee bat Vedi eae 27

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

aie icin ® i ans W wean ass 050 504 6a a passim

Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968) 16

Carr v. General Motors Corp. 425 Mich. 313, 389

EES ee See tee ee ee 6, 9, 18

Caterpiilar Inc. v. Williams, 482 U.S. 386 (1987)...... 16, 18

Cuffe v. General Motors Corp., 166 Mich. App. 766, 420

N.W.2d 874 (1988), vacated, 432 Mich. 885, 437

SS a4 0.64 Caen we Ads exeeay's 64 bK MS oe 6

Desjardins v. The Budd Co., 175 Mich. App. 599, 438

EE is ii ane dg kp ake eweh GAs oke an 6

Douglas v. American Information Technologies Corp., 877

a Re eee eee 25-26

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

ee ss wwe we ew ese gi passim

Franchise Tax Board of California v. Construction Labor-

ers Vacation Trust, 463 U.S. 1 (1983) ............. 13

Hanks v. General Motors ope 859 F.2d sil (8th Cir.

OO il ek SS , Feber as ien's 27

IAM Local 437 v. United States Can Co., 441 N.W.2d 710

CFR ED | Vida F tain’ ck Rand Fe caramels os veninn 11

’ Jackson v. Liquid Carbonic Corp., 863 F.2d 111 (ist Cir.

1988), cert. denied, 109 S.Ct. 3158 (1989) ......... 27

Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir.

RS EER 05-Aa S mner a - 26

Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988) ........ 27

TABLE OF AUTHORITIES — (Cont'd)

CASES: Page

Lingle v. Norge Division of Magic Chef 486 U.S. __ ,

108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) ........... passim

Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95

| EO ea Se eae ee oe ere 12-13, 21-24

Metro v. Ford Motor Co., 169 Mich. App. 549, 426

N.W.2d 700 (1988), vacated, 432 Mich. 886, 437

N.W.2d 634 (1989), on remand, __ Mich. App._—

ee eee aes cecal babes sds © 6, 27

Miller v. AT&T Network Systems, 850 F.2d 543 (9th Cir.

iss RANE dead e ahh: ic hiAiieh buna ew s 27

Nash v. AT&T Nassau Metals, 381 S.E.2d 206 (S.C.

SLO s sat wa cha OAS s ae be dadle abGhcelind’ 26

Newberry v. Pacific Racing Assoc., 854 F.2d 1142 (9th

Ge Si) Chee eeN dna dadeakes eweewR ees ood 27

Paperworkers v. Misco, Inc, 484 US. 29

ig inen ake eds wh dete eel awd RIES cs 18, 24

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) .... 13

Republic Steel Corp. v. Maddox, 379 U.S. 650

itis Sick d bss «ac AGG S b'946 5500 bya ss 15, 23

Steelworkers v. American Manufacturing Co., 363 US.

ade ek eek leks ekhensee aes > 23

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.

ES £5 6bt Girth Os -wiieks ace daes ened’ diane 18, 33

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.

EE Like hk v2 Gh iis Van BAS Wend eto 15, 23, 24

Textile Workers Union v. Lincoln Mills, 353 U.S. 448

ERE vende bGREL ohn. d dtd UE can tuk OF ARE NAGD 12

vii

TABLE OF AUTHORITIES — (Cont'd)

STATUTES:

Labor Management Relations Act of 1947

Section 203(d), 29 U.S.C. §173(d) ................

Section 301(a), 29 U.S.C. §185(a) ................

Michigan Handicapper’s Civil Rights Act

ee haan dn wae b's ar nccececses

MCL 37.1202(1)(b) and (c)...... Misuaweencdbawn

State Handicap Discrimination Statutes _

Ga. Code Ann. §66-504 (1979) ...............8058.

Ind. Code §22-9-1-13 (1971) ............ a tie elites

Kan. Stat. Ann. §44-10 (1986) ................05.

Ky. Rev. Stat. Ann. §207.130 (1976) ..............

N.H. Rev. Stat. Ann. §354-A (1977) ..............

Neb. Rev. Stat. §48.1101 ef seq. ..............00..

Nev. Rev. Stat. §613.310 et seg. (1987) ............

S.C. Code Ann. §43-33-60 (1983) ................

S.D. Laws §20-B-1 ef seg. (1986) .................

Tex. Hum. Res. Code Ann. §121.003 (Vernon 1980)

MISCELLANEOUS:

2 Bureau of National Affairs, Collective Bargaining Nego-

tiations And Contracts, Basic Patterns In Union Con-

ee eis 0 nung w ibd cn saee c¥ee Hed Keen's

Note, Employee Drug Testing, 74 Va. L. Rev. 969 (1988)

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No.

CHRYSLER CORPORATION, ET AL.,

PETITIONERS

Vv.

STANLEY SMOLAREK AND RALPH FLEMING,

RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Chrysler Corporation, Louis Eovaldi, and Lyndon Verlyndon

petition for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Sixth Circuit in these

consolidated cases.

OPINIONS BELOW

The opinion of the court of appeals sitting en banc (App. A,

infra, 1a-27a) is reported at 879 F.2d 1326. The order granting

rehearing en banc and vacating the panel opinion (App. B, infra,

28a) is reported at 866 F.2d 838. The vacated panel opinion of the

court of appeals (App. C, infra, 29a-41a) is reported at 858 F.2d

1165. The orders of the district court in Smolarek v. Chrysler

Corporation (App. D, infra, 42a-47a) are unreported. The opin-

ion and order of the district court in Fleming v. Chrysler Corpora-

tion (App. E, infra, 48a-52a) is reported at 659 F. Supp. 392.

- a 2

JURISDICTION

The judgment of the court of appeals was entered on July 12,

1989 (App. A, infra, 1a). The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Section 301(a) of the Labor Management Relations Act of

1947, 29 U.S.C. §185(a), provides:

Suits for violations of contracts between an employer and a

labor organization representing employees in an industry

affecting commerce * * * may be brought in any district

court of the United States having jurisdiction of the

parties © °°. va

Section 203(d) of the Labor Management Relations Act of

1947, 29 U.S.C. §173(d), provides in pertinent part:

Final adjustment by a method agreed upon by the parties is

declared to be the desirable method for settlement of griev-

ance disputes arising over the application or interpretation of

an existing collective bargaining agreement.

Section 103(b)(i) of the Michigan Handicapper’s Civil

Rights Act, MCL 37.1103(b)(i); MSA §3.550(103)(b) (i),

provides:

“Handicap” means a determinable physical or mental char-

acteristic of an individual * * * which characteristic * * * is

unrelated to the individual’s ability to perform the duties of a

particular job or position, or is unrelated to the individual’s

qualifications for employment or promotion.

Sections 202(1)(b) and (c) of the Michigan Handicapper’s Civil

Rights Act, MCL 37.1202(1)(b) and (c); MSA §3.550

(202) (1)(b) and (c), provide that “[a]n employer shall not”:

(b) Discharge or otherwise discriminate against an individ-

ual with respect to compensation or the terms, conditions, or

privileges of employment, because of a handicap that is

unrelated to the individual’s ability to perform the duties of a

particular job or position.

employment in a way which deprives or tends to deprive an

individual of employment opportunities or otherwise ad-

versely affects the status of an employee because of a

handicap that is unrelated to the individual’s ability to

perform the duties of a particular job or position.

STATEMENT

Respondents Stanley Smolarek and Ralph Fleming allege in

these cases that petitioner Chrysler Corporation refused to rein-

state them to their hourly positions following disability absences.

Their employment with Chrysler was governed by a collective

bargaining agreement between Chrysler and respondents’ exclu-

sive bargaining representative, the United Automobile, Aero-

space, and Agricultural Implement Workers of America

(“UAW”).

Both respondents suffer from medical conditions that re-

quired accommodation in their work activities (App., infra, 21a,

22a). The Chrysler-UAW collective bargaining agreement gives

employees specific rights to handicap accommodation, including

(1) the right to medical or disability leave if they develop a

temporarily disabling medical condition; (2) the right to return to

work after a disability, in accordance with seniority and certain

procedures, including passing a medical examination; and (3) the

right to “reasonable accommodation[ ] to an employee’s handi-

cap” including “place[ ment] in accordance with his seniority, on

job in his department or division that he can perform consistent

with his assigned physical restrictions” (Fleming C.A. App. 101).

The agreement also provides an elaborate grievance arbitration

procedure for the resolution of disputes (Smolarek C.A. App. 91-

97).

Respondents claim that Chrysler violated the Michigan

Handicapper’s Civil Rights Act (“HCRA”) by failing to provide

the accommodation granted by the collective bargaining agree-

ment. The trial courts found these HCRA claims preempted by

Section 301 of the Labor Management Relations Act, 29 U.S.C.

§185. However, in an 8-7 en banc decision, the Sixth Circuit

reversed.

Because respondents’ HCRA claims are based on rights

created solely by the Chrysler-UAW collective bargaining agree-

ment, and not by state law, and because their claims would

require interpretation of the collective bargaining agreement, they

are preempted by Section 301. Any other result would conflict

with federal labor policy requiring that labor disputes be resolved

in accordance with uniform federal laws and would contravene

the federal policy favoring resolution of collective bargaining

disputes through arbitration.

1. Smolarek’s Claim. Respondent Smolarek was a tool-and-

die maker at Chrysler who, since 1955, was provided with

accommodation of certain medical restrictions stemming from a

seizure disorder (App., infra, 2a, 21a). In October 1984 Smo-

larek suffered a seizure at work and was disabled for two weeks

(id. at 2a), during which time he was provided with a medical

leave pursuant to the Chrysler-UAW collective bargaining agree-

ment. Smolarek alleges that when he was released to return to -

work, he was told there was no work available consistent with his

medical restrictions (id. at 3a). _

Smolarek instituted this action in Michigan state court in

1986, claiming he had been denied reinstatement following a

disability leave, and that this violated the HCRA. In particular,

Smolarek alleged that he became “disabled * * * for approxi-

mately two weeks,” that he thereafter reported back to work

subject to certain medical restrictions, but that Chrysler

* * * has refused to return plaintiff to his former position or

another position consistent with his medical restrictions and

has maintained plaintiff instead on disability lay-off indefi-

nitely (Smolarek C.A. App. 5-6).

Chrysler removed Smolarek’s suit to federal court on the

basis that his claim that Chrysler was required to accommodate

his medical restrictions actually arose under the Chrysler-UAW

collective bargaining agreement and was preempted by federal

law under Section 301. The district court denied Smolarek’s

motion to remand, finding that Smolarek’s purported HCRA

claim was preempted by Section 301 under this Court’s decision

in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) (App.,

infra, 42a). Smolarek then stipulated to dismissal of his action for

failure to exhaust contractual remedies (id. at 47a), and filed an

appeal from the district court’s decision denying his motion to

remand.

2. Fleming's Claim. Fleming began work for Chrysler as a

painter-glazer in 1976 (App., infra, 3a). As a result of an

automobile accident in 1983, Fleming suffered “severe and per-

manent injuries” which, after h¢ returned to work from a year-

long disability leave, required medical restrictions on his activities

as a painter-glazer (Fleming C.A. App. 12, 209). In 1984

Fleming allegedly was reinjured while leaving the Chrysler plant

and was off work for ten days (Fleming C.A. App. 186). Fleming

alieges that after his return from this disability he was given work

assignments that were inconsistent with his medical restrictions

(App., infra, 4a). Fleming was eventually laid off indefinitely due

to lack of work, but he claims he was told he would not be

recalled (id.).

Fleming filed an action in Michigan state court in 1985,

claiming that he suffered from “severe and permanent injuries”

which required “certain restrictions” on his work activities

(Fleming C.A. App. 12). Fleming alleged that “instead of abid-

ing by said restrictions, [he] was subsequently terminated” (id.).

Fleming’s complaint asserted four causes of action: (1) violation

of the Michigan HCRA; (2) retaliatory discharge for intent to file

a worker’s compensation claim; (3) breach of an implied duty of

good faith and fair dealing; and (4) intentional interference with

the pursuit of his occupation (id.).

Chrysler removed the action to federal court on Section 301

preemption grounds. The district court denied Fleming’s motion

to remand for the reason that at least the claims for breach of

good faith and fair dealing and interference with the pursuit of his

occupation were preempted by Section 301. Fleming did not

appeal the denial of his motion to remand.! Thereafter Fleming’s

deposition was taken in which he admitted he could not perform

his job as a painter-glazer without “provisions” being made for his

medical condition, and he claimed that Chrysler had a duty to

make such “provisions” under the collective bargaining agree-

ment (App., infra, 22a). Chrysler then filed a motion for sum-

mary judgment asserting that Fleming’s HCRA and retaliatory

discharge claims, like his other two claims, were preempted by

Section 301 and subject to dismissal for failure to exhaust

contractual remedies. The district court granted the motion and

dismissed Fleraing’s entire complaint (id. at 48a, 52a). Fleming

appealed only from the dismissal of his HCRA and retaliatory

discharge claims.

3. The Michigan Handicapper’s Civil Rights Act. The

HCRA prohibits discrimination in employment on account of a

“handicap,” which is defined as a “determinable physical or

mental characteristic” that “is unrelated to the individual’s ability

to perform the duties of a particular job or position.” MCL

37.1103(b) (i) and 37.1202(1) (b), (c). In light of this definition,

the Michigan Supreme Court has held that physical conditions

that are “job related,” and which therefore require “accommoda-

tion,” are not “handicaps” subject to the protection of the

HCRA. Carr v. General Motors Corp., 425 Mich. 313, 389 N.W.

2d 686 (1986).2 It is thus beyond dispute that any right to

1 Thus, as the court of appeals recognized (App., infra, 15a), wile

Smolarek has preserved his challenge to the removal of his action under Section

301, Fleming has conceded the propriety of the removal and the existence of

federal jurisdiction under Section 301.

* Following Carr, the Michigan Court of Appeals has held in three cases

that labor contract-based handicap accommodation claims, like respondents’

here, are preempted by Section 301. Desjardins v. The Budd Company, 175

Mich. App. 599, 438 N.W.2d 622 (1988); Metro v. Ford Motor Company, 169

accommodation arises from the Chrysler-UAW collective bar-

gaining agreement, and not the Michigan HCRA.

4. The Sixth Circuit Decision. A three-judge panel of the

Sixth Circuit issued an opinion on October 3, 1988, holding that

Smolarek’s and Fleming’s HCRA claims were not preempted by

Section 301 (App., infra, 29a-41a). On Chrysler’s motion for

rehearing en banc, the panel decision was vacated and the case

was reheard by the entire bench of fifteen judges (App., infra,

28a). The en banc court ruled on July 12, 1989 (App., infra, 1a-

27a).3 A bare majority — eight of the fifteen judges — held that

respondents’ HCRA claims were not preempted. The seven

dissenting judges believed respondents’ HCRA claims were pre-

empted, inasmuch as they arose only from the collective bargain-

ing agreement, with the result that respondents were attempting

to “bootstrap” negotiable contract rights into purported nonnego-

tiable HCRA claims (App., infra, 25a).

a. The Majority Opinion. The eight-judge majority opinion,

written by Judge Wellford, acknowledged that these cases “pre-

sent close and difficult questions” regarding the scope of Section

301 preemption (App., infra, 2a), but then proceeded to state the

broad view that “§301 does not preempt state anti-discrimination

laws” (id. at 11a), ostensibly based on dictum in Lingle v. Norge

Division of Magic Chef, 486 U.S. __ , 108 S.Ct. 1877, 1885, 100

L.Ed.2d 410 (1988). The opinion did not address this Court’s

Mich. App. 549, 426 N.W.2d 700 (1988); Cuffe v. General Motors Corp., 166

Mich. App. 766, 420 N.W.2d 874 (1988). An application for leave to appeal to

the Michigan Supreme Court is presently pending in Desjardins. The Michigan

Court of Appeals’ decisions in Metro and Cuffe were vacated by the Michigan

Supreme Court and remanded to the Court of Appeals for reconsideration in

light of Lingle. 437 N.W.2d 634 (Mich. 1989). The Court of Appeals thereafter

reaffirmed its Section 301 preemption holding in Metro, __ N.W.2d —_ (Mich.

App. Aug. 25, 1989), and the plaintiff has re-applied for leave to appeal to the

Michigan Supreme Court. The Michigan Court of Appeals has not yet issued a

decision on reconsideration in Cuffe.

3 All fifteen judges agreed that, in light of this Court’s decision in Lingle v.

Norge Division of Magic Chef, 486 U.S. __ , 108 S. Ct. 1877, 100 L. Ed. 2d 410

(1988), Fleming’s retaliatory discharge claim was not preempted by Section

301. Chrysler does not seek review of that decision.

explanation in Lingle that “the operation of the anti-discrimina-

tion laws does, however, illustrate the relevant point for pre-

emption analysis”: whether “the existence or the contours of the

state law violation [is] dependent upon the terms of the [labor]

contract.” Id.

Though the majority identified the specific allegations estab-

lishing that respondents sought accommodation for their medical

conditions (App., infra, 1la, 15a), and noted that such accommo-

dation would exceed rights or duties created by the HCRA (id. at

lla), it dismissed the fact that respondents’ accommodation

claims were rooted in the collective bargaining agreement. The

majority instead concluded that the contract provisions merely

constituted a “defense” to the HCRA claims, see Caterpillar Inc.

v. Williams, 482 USS. 386 (1987), and that, in any event,

respondents’ counsel had during oral argument “expressly dis-

claimed that they seek any collective bargaining agreement rem-

edy” (App., infra, 13a-14a).

Lastly, the majority held that even though accommodation

rights and procedures were governed by the collective bargaining

agreement, resolution of respondents’ HCRA discrimination

claims simply turned on Chrysler’s “motivation” — an inquiry

deemed “independent” of the labor agreement under Lingle (id.

at 15a).

b. The Dissenting Opinion. Seven judges dissented in an

opinion by Judge Kennedy. After analyzing the specific allega-

tions in respondents’ complaints, the dissenting judges concluded

that “Smolarek’s claim is preempted to the extent that he claims

a right to reinstatement to a position other than his former job”

and that “Fleming’s claim is preempted to the extent that he

claims a right [to accommodation exceeding that provided by the

HCRA] to enable him to perform his job” (App., infra, 19a).

Noting that “the question of whether removal jurisdiction

exists based upon a federal question is answered by reviewing the

complaint as of the time of removal,” the dissenters found

counsels’ disclaimer at oral argument ineffectual: “The com-

plaints and the substance of [respondents’] claims do present a

§301 federal question” because “[t]here is no right independent

of the collective bargaining agreement to be reinstated to another

job consistent with one’s medical disability under the HCRA,”

citing Carr v. General Motors Corp., supra (App., infra, 20a-

21a). Respondents’ claims therefore arose from or were “inextri-

cably intertwined with” the contract (id. at 22a).

Explaining that respondents were “ask[ing] us to wear

blinders” by “simply asserting that [they have] a state-law tort

claim” independent of the contract, Judge Kennedy's opinion

observed that this Court had rejected that very view in Electrical

Workers v. Hechler, 481 U.S. 851 (1987). The dissenters also

rejected respondents’ (and the majority’s) over-generalization

regarding non-preemption of state-law discrimination claims.

While some claims (e.g., race, sex, and age discrimination) may

“fall under the doctrine of complete parallelism, as explained

* * * in Lingle,” the right to be free of such forms of discrimina-

tion “is independent of any ancillary right contained in a collec-

tive bargaining agreement” (App., infra, 24a). But in the present

setting, the dissenters concluded, accommodation of a medical

condition is a negotiable right provided only by contract which

cannot be “bootstrap[ped]” into an HCRA claim without trigger-

ing Section 301 preemption (id. at 25a).

>, 66

Finally, the seven dissenters warned of the majority’s “over-

broad precedent against finding §301 preemption” which would

“permit[ ] an individual to sidestep available grievance proce-

dures[,] * * * cause arbitration to lose most of its effectiveness,

[and] eviscerate a central tenet of federal labor contract law

under §301 that it is the arbitrator, not the court, who has the

responsibility to interpret the labor contract in the first instance.”

Lingle, 108 S.Ct. at 1884; Lueck, 471 U.S. at 220.

REASONS FOR GRANTING THE PETITION

Over the past several decades this Court has repeatedly held

that disputes between employers and employees directly relating

to the terms and conditions set forth in their collectively bar-

gained labor contracts must be governed by a uniform body of

federal law, with resolution of such disputes through contractual

grievance arbitration procedures rather than judicial litigation.

The court of appeals’ 8-7 en banc decision, however, permits

respondents and countless similarly situated employees to chal-

lenge their employers’ actions concerning matters governed by a

collective bargaining agreement in court simply by labeling their

contract dispute as a “discrimination” claim and eschewing the

grievance procedure set forth in that agreement.

The court of appeals’ en banc ruling thus conflicts with federal

labor policy mandating that labor disputes be resolved in accor-

dance with uniform federal laws and pursuant to grievance arbi-

tration procedures. The court of appeals’ decision cannot be

squared with this Court’s decisions in Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202 (1985); Electrical Workers v. Hechler, 481

U.S. 851 (1987), or Lingle y. Norge Division of Magic Chef, 486

U.S. —__ , 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). The court of

appeals reasoned that respondents’ claims in this case more

closely resembled the claim in Lingle than that in Lueck. That is

not so. In actuality, as the dissenters concluded, respondents’

claims are directly founded on the collectively bargained right to

accommodation of a medical condition, and fit precisely within

this Court’s statement in Lingle that a state-created remedy,

“although nonnegotiabile,” is preempted by Section 301 if it

“turn[s] on the interpretation of a collective-bargaining agree-

ment for its application.” 108 S.Ct. at 1882 n.7. Respondents’

claims are, indeed, archetypal examples of state-created “discrim¢

4 Forty-five states and the District of Columbia have enacted statutes

prohibiting handicap discrimination. See Note, Employee Drug Testing, 74 Va.

L. Rev. 969, 986 n.112 (1988). At least ten of these statutes, like Michigan’s, do

not require accommodation of job-related handicaps. See Ind. Code § 22-9-1-

13 (1971); Neb. Rev. Stat. § 48.1101 et seg; Ga. Code Ann. § 66-504 (1979);

Kan. Stat. Ann § 44-10 (1986); Ky. Rev. Stat. Ann. § 207.130 (1976); N.H.

Rev. Stat. Ann. § 354-A (1977); S.D. Laws §20-B-1 et seg. (1986); S.C. Code

Ann. § 43-33-60 (1983); Tex. Hum. Res. Code Ann. §121.003 (Vernon 1980);

Nev. Rev. Stat. § 613.310 et seg. (1987).

ination” theories that must be held preempted because their

resolution requires contract interpretation.

The lower courts have struggled with the proper application

of Lueck and Lingle in similar cases involving a variety of state-

law theories. The 8-7 split of the en banc Sixth Circuit in this case

demonstrates the confusion in this area and the need for guidance

from this Court, as does the 4-3 split of the Wisconsin Supreme

Court on a similar Section 301 preemption issue in JAM Local

437 v. United States Can Co., 441 N.W.2d 710 (Wisc. 1989).

This confusion has resulted in fundamentally different approaches

to Section 301 preemption analysis, producing conflicting results

in comparable cases and adding uncertainty to an area of the law

that demands predictability and uniformity. Moreover, as we will

demonstrate at pages 25-28, infra, the court of appeals’ decision is

at odds with the approach taken on the issue of Section 301

preemption by the Seventh and Eighth Circuits. Further review of

this question is plainly warranted.

A. The Court of Appeals Has Decided An Important Fed-

eral Question In A Way That Cannot Be Reconciled

With This Court’s Decisions And That Threatens To

Disrupt Federal Labor Relations Policy.

1. Federal law and policy preempt state claims that

are rooted in or purport to define the meaning of

collectively bargained terms and conditions of

employment.

There is no dispute in this case that (1) respondents are

bargaining unit employees whose employment is governed by the

Chrysier-UAW collective bargaining agreement; (2) the labor

agreement grants certain rights to return to work following medi-

cal disabilities, and prescribes procedures governing the return to

work, which are not contained in the Michigan HCRA; (3)

respondents were entitled to present their claims of denied ac-

commodation pursuant to the labor contract’s grievance arbitra-

tion procedure; and (4) respondents have instead presented these

claims in state-law “handicap discrimination” actions. Respon-

dents thus seek to have their accommodation claims adjudicated

by a court and jury under rules of Michigan law, rather than

under uniform rules of federal labor law.

In these circumstances, however, federal labor law super-

sedes any state cause of action. The contrary decision of the court

of appeals cannot be reconciled with the rulings of this Court or

with the principles of federal labor policy reflected in those

rulings.

Section 301(a) of the Labor Management Relations Act of

1947, 29 U.S.C. §185(a), creates federal jurisdiction over

“[s]uits for violation of contracts between an employer and a

labor organization representing employees in an industry affecting

commerce * * *.” In Textile Workers Union v. Lincoln Mills, 353

U.S. 448 (1957), this Court held that Section 301 is not merely a

jurisdictional statute but rather it “expresses a federal policy that

federal courts should enforce these [collective bargaining] agree-

ments” and that “the substantive law to apply in suits under

§301(a) is federal law, which the courts must fashion from the

policy of our national labor laws.” Jd. at 455, 456. Accordingly, in

defining rights and responsibilities in the labor context, “[ f]ederal

interpretation of the federal law will govern, not state law.” Jd. at

457.

The Court examined the reason for this rule in Local 174,

Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962). “The dimen-

sions of §301 require the conclusion that substantive principles of

federal labor law must be paramount in the area covered by the

statute. Comprehensiveness is inherent in the process by which

the law is to be formulated under the mandate of Lincoln Mills,

requiring issues raised in suits of a kind covered by §301 to be

decided according to the precepts of federal labor policy.” Jd. at

103. Disputes over the meaning of a collective bargaining agree-

ment therefore cannot be left to state law because “the subject

matter of §301(a) ‘is peculiarly one that calls for uniform law.’ ”

Id. As the Court further explained:

The possibility that individual contract terms might have

different meanings under state and federal law would inevita-

bly exert a disruptive influence upon both the negotiation and

administration of collective agreements. Because neither

party could be certain of the rights it had obtained or

conceded, the process of negotiating an agreement would be

made immeasurably more difficult * * *. Id.

In short, “in enacting §301, Congress intended doctrines of

federal labor law uniformly to prevail over inconsistent local

rules.” Lucas Flour, 369 U.S. at 104. Indeed, the “pre-emptive

force of §301 is so powerful as to displace entirely any state cause

of action” that contends, explicitly or implicitly, that an employer

breached its obligations under a labor contract. Franchise Tax

Board of California v. Construction Laborers Vacation Trust, 463

U.S. 1, 23 (1983) (emphasis added). “[A]ny complaint that

comes within the scope of the federal cause of action” — even

though “pleaded [as] an adequate claim ffor relief

under * * * state law” and even though seeking “‘a remedy availa-

ble only under state law” — is “purely a creature of federal law,

notwithstanding the fact that state law would provide a cause of

action in the absence of §301.” Id. at 23-24. See also Pilot Life

Ins. Co. v. Dedeaux, 481 U.S. 41, 55-56 (1987).

In the last five years this Court has issued a series of opinions

that have applied these principles of federal labor policy to a

variety of state-law claims. First, in Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202 (1985), an employee brought a tort suit in

Wisconsin state court, contending that his employer had “inten-

tionally, contemptuously, and repeatedly failed” to make disabil-

ity insurance payments under a collectively bargained disability

plan. Jd. at 206. The Wisconsin Supreme Court rejected the

employer’s argument that federal law preempted the employee’s

state-law claim, asserting that the employee’s suit did not arise

under Section 301 because “[u]nder Wisconsin law, the tort of

bad faith is distinguishable from a bad-faith breach of contract”

and “is independent of that contract.” Jd. at 207. The Wisconsin

court additionally held that “[p]ermitting the state action to

proceed would not have an adverse impact on the effective

administration of national iabor policy, since the courts will make

no determination as to whether the labor agreement has been

breached.” Jd. at 207-208.

This Court unanimously reversed, explicitly rejecting the

notion — accepted by the court of appeals here — that the

addition of a motivational factor (e.g., bad faith) to a contract-

based claim avoided preemption under Section 301. Jd. at 211.

The Court held that the employee’s state-law tort suit was

preempted by Section 301 because “any attempt to assess liability

here inevitably will involve contract inierpretation.” Jd. at 218.

The Court observed:

If the policies that animate § 301 are to be given their proper

range,* ** the pre-emptive effect of §301 must extend

beyond suits alleging contract violations. These policies re-

quire that “the relationships created by [a collective bargain-

ing] agreement’ be defined by application of “an evolving

federal common law grounded in national labor policy.” * * *

The interests in interpretive uniformity and predictability

that require that labor-contract disputes be resolved by

reference to federal law also require that the meaning given a

contract phrase or term be subject to uniform federal inter-

pretation. Thus, questions relating to what parties to a labor

agreement agreed, and what legal consequences were in-

__tended to flow from breaches of that agreement, must be

resolved by reference to uniform federal law, whether such

questions arise in the context of a suit for breach of contract

or in a suit alleging liability in tort. Jd. at 210-211.

The Court further noted that “[a]n\ other result would elevate

form over substance and allow parties to evade the requirements

of §301 by relabeling their contract claims” as claims under state

law. Id. ai 2:1.

The Court in Lueck recognized that, if state law were

allowed to determine the meaning of collectively bargained con-

tract language, “all the evils addressed in Lucas Flour would

recur” (id.):

The parties would be uncertain as to what they were binding

themselves to when they agreed to create a right * * *. As a

result, it would be more difficult to reach agreement, and

disputes as to the nature of the agreement would proliferate.

Importantly, the Court reasoned that preempting Lueck’s

tort claim: was the only result that “preserves the central role of

arbitration in our ‘system of industrial self-government.’ ” Jd. at

219, citing Steelworkers v. Warrior & Gulf Navigation Co., 363

U.S. 574, 581 (1960). The Court cautioned that “[p]erhaps the

most harmful aspect of the Wisconsin decision is that it would

allow essentially the same, suit to be brought directly in state court

without first exhausting the grievance procedures established in

the bargaining agreement.” Jd. at 219. The Court concluded:

A rule that permitted an individual to sidestep available

grievance procedures would cause arbitration to lose most of

its effectiveness, Republic Steel Corp. v. Maddox, 379 U.S.

650, 653 (1965), as well as eviscerate a central tenet of

federal labor-contract law under §301 that it is the arbitrator,

not the court, who has the responsibility to interpret the labor

contract in the first instance. Jd. at 220.

With these conceptual underpinnings, the Court in Lueck

fashioned a test governing Section 301 preemption that

when resolution of a state-law claim is substantially depen-

dent upon analysis of the terms of an agreement made

between the parties in a labor contract, that claim must

either be treated as a §301 claim, * * * or dismissed as pre-

empted by federal labor-contract law. Jd. at 220.

This Court next addressed these Section 301 policy issues in

Electrical Workers v. Hechler, 481 U.S. 851 (1987). In that case

an injured bargaining unit employee sued her union under a state-

law tort theory, claiming that it had breached a duty to ensure

safety in the workplace. Jd. at 853. She asserted that liability

would simply turn on state-law negligence principles. Jd. at 854-

855. This Court unanimously disagreed. After re-examining the

policy underpinnings of Lucas Flour and Lueck, the Court held

that the alleged duty of the union arose, if at all, from the

collectively bargained agreements between the union and the

employer, and that “questions of contract interpretation * * *

underlie any finding of tort liability.”” Jd. at 862. The Court

stated:

The need for federal uniformity in the interpretation of

contract terms therefore mandates that here, as in Allis-

Chalmers, respondent is precluded from evading the preemp-

tive force of § 301 by casting her claim as a state-law tort

action. Jd. (footnote omitted) .°

Last year, in Lingle v. Norge Division of Magic Chef, 486

U.S. __ , 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), the Court

revisited these Section 301 preemption principles in a case repre-

senting the opposite end of the spectrum from Lueck and Hechler.

Lingle sued in Illinois state court alleging that she had been

discharged in retaliation for exercising her rights under the Illinois

workers’ compensation law. 108 S.Ct. at 1879. Lingle’s union also

filed a grievance on her behalf under the collective bargaining

agreement contending that she had been discharged without “just

cause”; an arbitrator ultimately ruled in Lingle’s favor, ordering

reinstatement with full backpay. /d.

5 In the same Term, in Caterpillar Inc. v. Williams, 482 U.S. 386 (1987),

the Court unanimously held that an employer’s removal of a lawsuit to federal

court was improper because the “complete pre-emption” corollary to the well-

pleaded complaint rule under Section 301, see Avco Corp. v. Aero Lodge No.

735, 390 U.S. 557 (1968), did not apply to claims for breach of individual

employment contracts. Jd. at 393-395. The employees in Caterpillar claimed

that their employer had made individual promises (regarding the duration of

employment) to them while in non-union positions. Id. at 388. They were later

downgraded to union positions, and ultimately laid off. Jd. at 389. Their state

lawsuit eschewed reliance on the collective bargaining agreement. However, in

finding the individual contract claims not preempted by Section 301, the Court

reaffirmed its fioldings in Lueck and Hechler that “[w]hen a plaintiff invokes a

right created by a collective-bargaining agreement, the plaintiff has chosen to

plead what we have held must be regarded as a federal claim * * *.” Jd. at 399.

In the meantime, the employer removed Lingle’s retaliatory

discharge suit to federal court, and argued that it should be

dismissed under Lueck as preempted by Section 301. The district

court agreed and dismissed the suit, and the Seventh Circuit

affirmed. The court of appeals reasoned that “the same analysis of

the facts” was implicated under both the “just cause” discharge

grievance and the retaliatory discharge lawsuit. Jd.

This Court reversed, once again unanimously. The Court

reaffirmed the federal labor policies upon which Lueck and

Hechler were grounded, but ruled that Lingle’s state retaliatory

discharge claim fell outside the rationale and holding of those

cases because “resolution of the state-law claim does not require

construing the collective-bargaining agreement.” Jd. at 1882

(footnote omitted). In contrast, the Court noted, in Lucas Flour,

Lueck, andi Hechler “pertinent principles of state law required

construing the relevant collective-bargaining agreement. Not so

here.” Jd. at 1882 n.7. The Court in Lingle stated the following

test:

{I]f the resolution of a state-law claim depends upon the

meaning of a collective-bargaining agreement, the applica-

tion of state law (which might lead to inconsistent results

since there could be as many state-law principles as there are

States) is preempted and federal labor-law principles —

necessarily uniform throughout the nation — must be em-

ployed to resolve the dispute. Jd. at 1881 (footnote omitted).

Thus, while a mere “parallel” factual analysis between a

labor contract claim and a state-law claim would be insufficient to

produce Section 301 preemption, id. at 1883, the Court empha-

sized that a state-law remedy, “although nonnegotiable,” could

“nonetheless turn[ ] on the interpretation of a collective-bargain-

ing agreement for its application,” or that “a law appli[cable] to

all state workers” could require, “at least in certain instances,

collective-bargaining agreement interpretation” — and in both

situations the state-law remedy would be preempted by Section

301. Id. at 1882 n.7.

The Court in Lingle additionally reiterated the admonition in

Lucas Flour and Lueck that “[a] rule that permitted an individ-

ual to sidestep available grievance procedures would cause arbi-

tration to lose most of its effectiveness, * * * as well as eviscerate

a central tenet of federal labor contract law under § 301 that it is

the arbitrator, not the court, who has the responsibility to inter-

pret the labor contract in the first instance.” Jd. at 1884, citing

Paperworkers v. Misco, Inc., 484 U.S. 29 (1987), and Steelwork-

ers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). Its

decision in Lingle, the Court concluded, “should make clear that

interpretation of collective bargaining agreements remains firmly

in the arbitral realm.” Jd.

2. Resolution of respondents’ claims under state law

would destroy the uniformity essential to interpreta-

tion of the collective bargaining agreement.

In analyzing respondents’ Michigan HCRA claims to deter-

mine whether they were preempted by Section 301, the eight

judges of the Sixth Circuit en banc majority committed the same

error as -ne lower courts in Lueck and Hechler: failing to

recognize that the state-law claims were both rooted in and

required interpretation of the collective bargaining agreement.

Resolution of respondents’ “handicap discrimination” claims un-

questionably would require interpretation of the provisions of the

Chrysler-UAW labor contract, which is the sole source of any

right to accommodation in view of the Michigan Supreme Court’s

construction of the HCRA in Carr v. General Motors Corp.,

supra. In this circumstance, it cannot be disputed that at least one

aspect of respondents’ HCRA claims “depends upon the meaning

of a collective-bargaining agreement.” Lingle, 108 S.Ct. at 1881.

The court of appeals’ opinion in fact suggested, in broad

terms, that this Court’s Lingle decision may have approved a

bright-line rule that Section 301 cannot preempt claims under

state anti-discrimination laws (App., infra, 11a, 13a). In addition,

the majority held that the accommodation provisions of the

Chrysler-UAW collective bargaining agreement constitute mere

“defenses” to respondents’ HCRA claims that cannot produce

——

Section 301 preemption under Caterpillar (App., infra, 13a, 16a).

What is more, the majority implied that respondents’ disclaimer

during oral argument “that they seek any collective bargaining

agreement remedy” (id. at 13a) is somehow relevant or control-

ling when respondents’ pleadings show otherwise. The court of

appeals has thus disregarded the teachings of this Court’s deci-

sions in a fashion that has significant ramifications for the impor-

tant federal interest in interpretive uniformity and predictability of

contract terms and the federal policy favoring grievance arbitra-

tion as the exclusive means of resolving disputes.

As noted above, Lingle made plain that a variety of state law

claims, even though representing nonnegotiable rights, would be

preempted by Section 301 if, “at least in certain instances,” they

“turned on the interpretation of a collective-bargaining agree-

ment.” Lingle, 108 S.Ct. at 1882 n.7. The Court accordingly did

not close the door to Section 301 preemption for all claims under

state anti-discrimination laws. To the contrary, claims predicated

on state anti-discrimination laws must be carefully scrutinized —

as the Court scrutinized other state-law claims in Lueck, Hechler,

and Lingle — to determine whether, “‘at least in certain instances,

collective-bargaining agreement interpretation” is required for

adjudication of the discrimination claim. Jd. Indeed, the Court

explicitly noted in Lingle, 108 S.Ct. at 1885, that anti-discrimina-

tion laws themselves “illustrate the relevant point for §301 pre-

emption analysis” — whether “the existence or the contours of

the state law violation [is] dependent upon the terms of the

[labor] contract.” While analysis of some state-law discrimina-

tion claims brought by union-represented employees may show

that they are not preempted, other claims clearly will be pre-

empted, and respondents’ HCRA claims in the present case are

archetypal examples of claims that are preempted. The apparent

bright-line rule suggested by the court of appeals for discrimina-

tion claims is both wrong and inimical to the important federal

policies underlying Section 301 preemption.®

6 Handicap accommodation claims by unionized workers often raise special

preemption issues because an employee’s physical or medical ability to perform

20 ‘

This Court held in Lueck, Hechler, and Lingle that it is

necessary to focus on precisely what respondents must establish to

prove their particular state-law claims — not the generic ele-

ments of an abstract claim, as the court of appeals did here (App.,

infra, 15a). The court of appeals essentially held that a discrimi-

natory motive is all that respondents need establish in a discrimi-

nation case, and that establishing mctive is unrelated to the terms

of the bargaining agreement. This simplistic reasoning would,

contrary to Lingle, apply to all disparate treatment discrimination

claims. That reasoning ignores the source of the claimed right to

accommodation which in this instance forms the basis of the

HCRA suit: the collective bargaining agreement. Moreover, this

Court in Lueck, 471 U.S. at 211, emphatically rejected the notion

that the addition of a motivational factor (e.g., bad faith) to a

contract-based claim would avoid preemption under Section 301.

Scrutiny of respondents’ complaints demonstrates that their

HCRA claims are grounded in the Chrysler-UAW agreement.

Smolarek claimed a right to reinstatement to “his former position

or another position consistent with his medical restrictions”

(App., infra, 20a), a remedy not available under the HCRA but

allegedly available under the labor agreement. Fleming’s com-

plaint likewise claimed a right to reinstatement to another posi-

tion, and to “reasonable accommodations so as to allow

[Fleming] to work despite his physical deierminable handi-

cap***” (id. at 22a). In the instances of these particular

“discrimination” claims, both respondents have unquestionably

a job is a subject that employers (and unions) must inevitably address,- and

frequently do in collective bargaining agreements — often creating favored

treatment exceeding that required by state anti-discrimination laws. See 2

Bureau of National Affairs, Collective Bargaining Negotiations And Contracts,

Basic Patterns In Union Contracts 75:4 (1989) (33 percent of all collective

bargaining agreements, and 44 percent in the manufacturing sector, grant special

rights to employees no longer able to perform their regular work). That type of

favored treatment is precisely what Chrysler and the UAW negotiated here.

Because favored treatment is in issue, rather than adverse discriminatory

treatment, these “handicap discrimination” claims are far different from typical

disparate treatment discrimination claims.

ee) TERE NEE nn

asserted rights rooted in the collective bargaining agreement,

because they exist nowhere else.

Moreover, adjudication of respondents’ discrimination

claims, in these instances, would require interpretation of the

collective bargaining agreement to ascertain whether, and under

what circumstances, they may be entitled to reinstatement to a

former position, or to a different position, or to some other form of

accommodation for their medical conditions. The agreement

prescribes the procedures for accomodation as well. These are not

“defenses” to an independent state-law claim, as was the case in

Caterpillar. They are affirmative elements of respondents’ claims.

Nor are these mere factually “parallel” inquiries under the

HCRA and the collective bargaining agreement, as was the case

with the “just cause” and “retaliatory discharge” claims in Lingle.

Here the inquiries are one and the same. It is only because of the

collective bargaining agreement that the inquiry is made at all.

The HCRA independently grants no such rights. It prescribes no

procedures. “Since the extent of [the accommodation] duty

depends upon the terms of the agreement between the parties,

both are tightly bound with questions of contract interpretation

that must be left to federal law.” Lueck, 471 U.S. at 216. The

court of appeals was thus plainly mistaken in its application of

Lingle and Caterpillar, and has permitted respondents “‘to evade

the requirements of §301 by relabeling their contract claims” as

state-law discrimination claims. Lueck, 471 U.S. at 211.

The court of appeals’ decision is not merely mistaken. It

threatens to disrupt federal labor policy. If “state law [were]

allowed to determine the meaning intended by the parties in

adopting” the labor contract’s provisions concerning accommoda-

tion, “all the evils addressed in Lucas Flour would recur.” Lueck,

471 US. at 211. A single provision in a nationwide labor contract,

such as that negotiated by Chrysler and the UAW (which covers

over 60,000 employees in 17 States), may well be given a

different meaning under the local discrimination or tort laws of

one State than those of another. Michigan HCRA cases are tried

to juries. Uniformity and predictability would accordingly be

destroyed. State law as discerned by a local jury would be

substituted for the “law of the shop.” This “would inevitably exert

a disruptive influence upon both the negotiation and administra-

tion of collective agreements.” Lucas Flour, 369 U.S. at 103.

Equally damaging to federal labor policy would be any

attempt to award respondents relief under their state-law claims.

Smolarek’s complaint, for example, demanded reinstatement to a

job, accommodation of his medical condition, lost compensation

and benefits,-and seniority — all of which must be ascertained

under provisions and procedures of the Chrysler-UAW collective

bargaining agreement (Smolarek C.A. App. 6). Permitting state

court judges and juries to grant such relief, under the guise of a

discrimination claim, would inevitably implicate and undermine

the very foundations of the Chrysler-UAW agreement. A judge or

jury could impose duties and create special privileges that are

utterly inconsistent with the agreement and could severely

prejudice the rights of respondents’ co-workers and other mem-

bers of the bargaining unit. Needless to say, this would “frus-

trate[ ] the effort of Congress to stimulate the smooth functioning

of [the collective bargaining] process” and would “strike[ ] at the

very core of federal labor policy.” Lucas Flour, 369 U.S. at 104.

In summary, it is impossible in this instance to resolve

respondents’ HCRA claims without applying or interpreting the

accommodation provisions of the collective bargaining agreement.

They are packaged as “handicap discrimination” claims, but it is

undisputed that the Michigan HCRA does not provide for the

type of accommodation sought by respondents. Their claims are

grounded, if at all, on the collective bargaining agreement. A

judge or jury purporting to address their handicap discrimination

claims would inevitably be forced to define the rights and respon-

sibilities created by the agreement. The negotiation and adminis-

tration of the agreement would thereby be subverted. As the

Court held in Lueck, 471 U.S. at 211, “questions relating to what

the parties to a labor agreement agreed, and what legal conse-

quences were intended to flow from breaches of that agreement,

must be resolved by reference to uniform federal law * * *.”

0 > MPO CR ema eye

3. Resolution of respondents’ claims under state law

would frustrate the strong federal policy requiring

settlement of labor disputes through arbitration.

The court of appeals did not consider the corrosive effect of

its decision on one of the fundamental tenets of federal labor

policy — the preservation of “the central role of arbitration in our

‘system of industrial self-government.’ Lueck, 471 U.S. at 219,

quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.

574, 581 (1960). See also Lingle, 108 S.Ct. at 1884. As the

opinion of the seven dissenting Sixth Circuit judges warned, the

majority’s “overbroad precedent against finding §301 preemption”

clearly endangers the role of labor arbitration, and “permit[s] an

individual to sidestep available grievance procedures,” citing

Lingle, 108 S.Ct. at 1884 (App., infra, 26a-27a). It is uncontro-

~ verted that respondents’ accommodation claims could have been

prosecuted through the labor agreement’s comprehensive griev-

ance arbitration procedure. Respondents have nonetheless been

permitted by the court of appeals’ decision to sidestep that

remedy.

The established policy of peacefully resolving labor contract

disputes through grievance arbitration, see Section 203(d) of the

Labor Management Relations Act of 1947, 29 U.S.C. § 173(d),

is greatly undermined by the court of appeals’ decision. To

“permit an individual employee to completely sidestep available

grievance procedures in favor of a lawsuit has little to commend

it.” Republic Steel v. Maddox, 379 U.S. 650, 653 (1965). “[I]t

would deprive employer and union of the ability to establish a

uniform and exclusive method for orderly settlement of employee

grievances.” Jd. The critical importance of this policy favoring

dispute resolution through arbitration was recently affirmed in

Paperworkers v. Misco, Inc., 484 U.S. 29, 36-38 (1987).7

7See also Steelworkers v. American Manufacturing Co., 363 U.S. 564

(1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960);

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).

Employers that have negotiated exclusive grievance arbitra-

tion procedures are denied the benefit of their bargain when, as

here, they are forced to litigate before state court judges and

juries claims that are grounded in the contract and can (and

should) be resolved through contractual procedures. As noted

earlier, a multi-state employer that has negotiated a nationwide

collective bargaining agreement could well have differing liabili-

ties under the same contractual provision — depending upon the

State in which it is decided or the local judge or jury that acts as

fact-finder.

As is the case with other disputes over contractual rights and

benefits, labor arbitrators are uniquely qualified to interpret and

enforce the accommodation provisions of the Chrysler-UAW

agreement. See Steelworkers v. Warrior & Gulf Co., 363 US.

574, 581-582 (1960); Paperworkers v. Misco, Inc., supra. An

arbitrator would unquestionably possess the power to determine

whether respondents were entitled to be placed in their former

positions, or in different positions, or otherwise to have their

medical conditions accommodated. If the arbitrator concluded

that Chrysler had breached the contract, he would be empowered

to award affirmative relief and compensation.

The critical point, however, is that whatever relief the arbi-

trator awarded would have been fashioned with due regard to the

rights and responsibilities contained in the collective bargaining

agreement as a whole, as- modulated by the “law of the shop,” aad

with an appreciation for the interests of all affected parties. A

judge or jury awarding relief on respondents’ HCRA claims, by

contrast, could ride roughshod over the rights and expectations of

the parties involved. Thus, preemption of respondents’ claims

under Section 301 is the only means of avoiding the “disruptive

influence” of “contract terms hav[ing] different meanings under

state and federal law,” Lucas Flour, 369 U.S. at 103, and

“mak[ing] clear that interpretation of collective-bargaining

agreements remains firmly in the arbitral realm * * *.” Lingle,

108 S.Ct. at 1884.

In the final analysis, the issue in this case, as in many labor

preemption cases, is not whether respondents may object to the

manner in which they were treated by their employer, but in what

forum they may object and under what substantive law and

procedures. This Court has already answered that question: “in

enacting §301 Congress intended doctrines of federal labor law

uniformly to prevail over inconsistent local rules.” Lucas Flour,

369 U.S. at 104. The decision below is out of step with this

principle. It makes “the process of negotiating an agreement * * *

immeasurably more difficult,” id. at 103, and clearly jeopardizes

“the Congressional goal of a unified federal body of labor-contract

law.” Lueck, 47i U.S. at 220.

B. The Court of Appeals’ Approach Conflicts With That Of

Other Circuits

The sharp disagreement between the majority and the dis-

senting judges in the court of appeals mirrors the conflict of

approach among the courts of appeals in factualiy similar cases.

The circuits are divided as to the scope of Section 301 preemp-

tion, as well as the proper analysis under the tests set forth in

- Lueck and Lingle.

The Seventh Circuit’s approach in Douglas v. American

Information Technologies Corp., 877 F.2d 565 (7th Cir. 1989),

demonstrates the conflict with the Sixth Circuit’s approach. In

Douglas the plaintiff alleged that she suffered from physical or

medical conditions that prohibited certain work, and claimed that

her employer had denied her excused work days, subjected her to

unjustified scrutiny, and disciplined and threatened her with

discharge without justification. Jd. at 567-568. Rather than pursu-

ing a grievance under her collective bargaining agreement, and

rather than asserting a handicap discrimination claim as respon-

dents did here, Douglas sued on a state-law theory of “intentional

infliction of emotional distress.” Jd. at 568.

Properly applying this Court’s holdings in Lucas Flour,

Lueck, and Lingle, the Seventh Circuit ruled that Douglas’ state-

law claim was preempted by Section 301. The court of appeals

reasoned that her claim, upon scrutiny, pertained directly to terms

and conditions established by the collective bargaining agreement,

such as excused work days, work scrutiny, discipline, and dis-

charge, and that “[r]esolution * * * will require a court to inter-

pret the collective bargaining agreement in order to determine

whether or not [her employer’s] allegedly wrongful conduct was

authorized under the collective bargaining agreement.” 877 F.2d

at 572.

In sharp contrast, the Sixth Circuit held here that even

though respondents’ HCRA claims depended directly on accom-

modation rights provided in the Chrysler-UAW collective bar-

gaining agreement, that agreement was merely a “defense” to a

state-law claim that itself required no interpretation of the agree-

ment. In addition, also in conflict with the Seventh Circuit’s

Douglas analysis, the Sixth Circuit merely focused on the generic

elements of an abstract discrimination claim (especially “motiva-

tion”) rather than factually scrutinizing the particular claim being

made, as mandated by Lingle, to determine its relationship to the

labor contract.

The approach to Section 301 preemption utilized by the

Eighth Circuit in Johnson v. Anheuser Busch, Inc., 876 F.2d 620

(8th Cir. 1989), likewise conflicts with that of the Sixth Circuit.

A union-represented employee there sued under eight separate

state-law theories, all arising from his discipline and discharge for

allegedly slashing tires in the company parking lot. Following the

directive of Lingle, the Eighth Circuit scrutinized the factual

proofs pertinent to each claim to ascertain whether it arose from

the collective bargaining agreement or required its interpretation.

Id. at 624-625. It held some claims preempted and others not.

One libel claim was preempted because it implicated collectively

bargained plant rules, and “any judicial resolution of this libel

allegation would necessarily involve construction of the collective

bargaining agreement.” Jd. at 624. But a second libel claim

concerning a post-discharge communication was held not pre-

empted because it required no contract interpretation. /d. at 625.

It is this claim-sensitive analytical approach, mandated by Lingle

and Lueck, that the Sixth Circuit failed to undert ke here.®

8 See also Nash v. AT&T Nassau Metals, 381 S.E.2d 206 (S.C. 1989), in

which the South Carolina Supreme Court ruled that a union-represented

While the foregoing decisions held lawsuits preempted that

had been packaged as state-law contract or tort claims,® rather

than as handicap discrimination claims,!° the factual and legal

similarities between those cases and the instant one are manifest.

The conflict in approach is also manifest. Regardless of an

employee's state-law tort and contract claims, stemming from his employer’s

actions following a disability, were all preempted by Section 301 because the

claims turned on contractual benefits and procedures set forth in the collective

bargaining agreement. The South Carolina Supreme Court admonished that the

lower court, in rejecting Section 301 preemption, had “failed to follow the

directive of Lueck * * * that preemption be decided on a case-by-case basis.” Jd.

at 209. The same is true of the Sixth Circuit’s opinion here.

® Other Section 301 preemption decisions adopting the approach utilized

in Douglas and Johnson include Jackson v. Liquid Carbonic Corp., 863 F.2d

111, 118 (ist Cir. 1988), cert. denied, 109 S.Ct. 3158 (1989) (privacy claims

preempted inasmuch as they “do not rest upon inalterable state-law rights which

float free of, and therefore do not require interpreting, t'.. ollective bargaining

agreement”); Hanks v. General Motors Corp., 859 F 2d 67 (8th Cir. 1988)

(wrongful discharge claim preempted, other claims remanded for consideratioa

of specific factual allegations); Newberry v. Pacific Racing Assoc., 854 F.2d 1142

(9th Cir. 1988) (breach of implied covenant of good faith claim preempted);

Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988) (constitutional claim challenging

drug testing preempted).

10 The Ninth Circuit has considered Section 301 preemption of “handicap

discrimination” claims in two cases, Miller v. AT&T Network Systems, 850 F.2d

543 (9th Cir. 1988) (Oregon law); and Ackerman v. Western Electric Co., 860

F.2d 1514 (9th Cir. 1988) (California law). These opinions — in which the

Ninth Circuit held that claims were not preempted — are not pertinent because

the state handicap discrimination statutes at issue affirmatively required accom-

modation wheieas the Michigan HCRA does not. See note 84supra. The

employees in Miller and Ackerman were accordingly relying upon statutory

rights to accommodation which were “parallel” to any rights under a collective

bargaining agreement. Compare Lingle, 108 S.Ct. at 1883, 1885.

The opposite is true here. As the Michigan Court of Appeals recently held

on remand in Metro v. Ford Motor Company, supra, note 2, in the context of

Michigan HCRA claims identical to respondents’ here:

Plaintiffs’ complaints alleged that they were discriminated against due to

their handicaps when they were denied their seniority rights under their

collective-bargaining agreement. These claims do not merely allege dis-

crimination which could also be the subject of a grievance action under the

collective-bargaining agreement. Instead, plaintiff's claims rely upon senior-

ity rights provided for under their collective-bargaining agreement in order

to establish their discrimination claims. The resolution of plaintiffs’

MHCRA claims would involve interpretation of their collective-bargaining

agreement in order to determine plaintiffs’ seniority rights and whether they

were violated. Plaintiffs’ claims require interpretation of the collective-

bargaining agreement, so they are preempted by §301. Slip. Op. at 2.

seeeensiiienaenen tlie

employee’s choice of state-law labeling — be it “discrimination,”

“tort,” or something else — “the relevant point for §301 pre-

emption analysis” is whether “the existence or the contours of the

state-law violation [is] dependent upon the terms of the [labor]

contract.” Lingle 108 S.Ct. at 1885. “Any other result would

elevate form over substance and allow parties to evade the

requirements of §301 by relabeling their contract claims” as state-

law actions. Lueck, 471 U.S. at 211.

CONCLUSION

For the reasons stated, the petition for a writ of certiorari

should be granted.

WILLIAM T. MCLELLAN

Chrysler Corporation

12000 Chrysler Drive

Highland Park, Michigan 48228

(313) 956-5462

October 1989

Respectfully submitted,

THOMAS G. KIENBAUM

Counsel of Record

THEODORE R. OPPERWALL

ROBERT W. POWELL

Dickinson, Wright, Moon,

Van Dusen & Freeman

800 First National Building

Detroit, Michigan 48226

(313) 223-3500

APPENDICES

Appendix A

Nos. 86-2074/87-1387

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STANLEY SMOLAREK,

Plaintiff-Appellant, (86-2074) | ON ApPeat from the

United States District

ais - Court for the Eastern

CHRYSLER CORPORATION, District of Michigan

Defendant-Appelize.

RALPH FLEMING,

Plaintiff-Appellant, (87-1387)

v. On APPEAL from the

CHRYSLER CORPORATION, a United States District

Delaware Corporation; Louis Court for the Eastern

EBaLpi and LYNDON VERLYNDON, District of Michigan

jointly and severally,

Defendants-Appellees.

Decided and Filed July 12, 1989

Before: ENGEL, Chief Judge; KEITH, MERRITT, KEN-

NEDY, MARTIN, JONES, KRUPANSKY, WELLFORD,

Appendix A

2 Smolarek v. Chrysler Nos. 86-2074/87-1387

MILBURN, GUY, NELSON, RYAN, BOGGS and NOR-

RIS, Circuit Judges; and PECK, Senior Circuit Judge.

WELLFORD, J., delivered the opinion of the court, in

which KEITH, MERRITT, MARTIN, JONES, MILBURN

and NORRIS, JJ., and PECK, S. J., joined. KENNEDY, J.,

(pp. 19-27) delivered a separate opinion concurring in part

and dissenting in part, in which ENGEL, C. J.,. KRUPAN-

SKY, GUY, NELSON, RYAN, and BOGGS, JJ., joined.

WELLFORD, Circuit Judge. These combined cases pres-

ent close and difficult questions regarding whether § 301 of

the Labor Management Relations Act, 29 U.S.C. § 185, pre-

empts plaintiffs’ actions claiming violations of Michigan's

Handicappers’ Civil Rights Act, M.C.L. § 37.1101 ef seq.

(HCRA), and retaliatory discharge in violation of public pol-

icy relating to the filing of workers’ compensation claims. In

each case the district court found plaintiffs state cause of

action preempted by § 301 and dismissed the suit for failure

to exhaust remedies. The Supreme Court’s recent decision

in Lingle v. Norge Div. of Magic Chef, Inc., 108 S. Ct. 1877

(1988), holding that an action under Illinois law for the tort

of retaliatory discharge for filing a workers’ compensation

claim was not preempted by § 301, guides our decision in

these cases.

SMOLAREK

Smolarek was employed by Chrysler from 1953 until his |

lay off in 1984 and was a member of the United Automobile

Workers (UAW).' Since an injury in 1955, Smolarek has suf- |

fered from a seizure disorder, which normally has been con- |

trolled by medications. In October 1984, he suffered a seizure

at work and was absent from work for the following two

weeks. When he returned to work, he was informed that no

’The UAW has filed an amicus curiae brief in the Smolarek appeal |

arguing for reversal of the district court’s judgment.

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 3

jobs consistent with the medical restrictions, under which he

had worked for nearly thirty years, were available. In 1985

Smolarek again attempted to return to work and was told

no work was available within his restrictions. Plaintiff alleges

— that at that time his foreman made the comment, “Stan, what

if you fall down and other people in the plant see you and

you are having a seizure. The other people could have a heart

attack.”

In April 1986, Smolarek filed a two count complaint in

Michigan state court alleging discrimination under the

HCRA and workers’ compensation retaliation. He claimed

that Chrysler discriminated against him by refusing to return

him to his former position based on a handicap unrelated

to his ability to perform his job duties, and that Chrysler also

refused to reinstate him based on its fear that he might injure

himself during a seizure on the job and file a workers’ com-

pensation claim. Smolarek did not allege any violation of the

collective bargaining agreement between the UAW and

Chrysler.

Chrysler removed the case to federal district court claiming

federal question jurisdiction. Smolarek filed a motion to

remand, which the district court denied on the grounds that

§ 301 preempted Smolarek’s claims. The district court then

dismissed Smolarek’s action because he had failed to exhaust

his intra-union remedies before filing a § 301 action. Smo-

larek now appeals the district court’s denial of his motion

to remand solely on the handicap discrimination issue.

FLEMING

Chrysler hired Fleming, also a UAW member, in 1976 as

a painter-glazer. In August 1984 Fleming was injured while

leaving the Chrysler plant, and as a result he suffered some

loss of balance, severe headaches, muscle spasms in his back,

and nausea. Fleming continued to work with some medical

restrictions on the kind of work he could do. Fleming claims

Appendix A

4 Smolarek v. Chrysler Nos. 86-2074/87-1387

that following his injury he was given job assignments incon-

sistent with his limitations. Fleming further contends that

this “harassment” increased when he expressed his intent to

file a workers’ compensation claim. In October 1984, Fleming

was laid off indefinitely. Chrysler claims his lay off was due

to lack of work, as allowed by the collective bargaining agree-

ment. Fleming claims that, while technically on lay off, he

was told he was being dismissed.

In December 1984 Fleming grieved his lay off. This griev-

ance was pursued to the third step of a four-step grievance

procedure before Fleming voluntarily terminated his employ-

ment in May 1986 by relinquishing his recall rights as part

of a settlement of his workers’ compensation claim filed in

February 1985.

Fleming filed a complaint in state court in July 1985, alleg-

ing violation of HCRA, discharge in retaliation for expressed

intent to file a workers’ compensation claim, breach of

implied duty of good faith and fair dealing, and intentional

interference with his quiet and peaceful pursuit of a lawful

occupation. In August 1985 Chrysler removed the suit to fed-

eral district court. In October 1985 the district court denied

Fleming’s motion to remand on the grounds that the latter

two counts of Fleming’s complaint conferred original juris-

diction on the federal court.

Chrysler then filed a motion for summary judgment argu-

ing that Fleming’s claims were preempted by § 301. Finding

that all of Fieming’s claims were preempted, the district court

granted the motion and dismissed the case. Fleming appeals

this dismissal only with regard to the HCRA and retaliatory

discharge claims.

Removal and § 301 Preemption

Ordinarily, the question of removability to federal court

under 28 U.S.C. § 1441 turns upon application of the

“well-pleaded complaint rule.” Federal jurisdiction exists

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 5

only when a plaintiffs properly pleaded complaint presents

a federal question on its face.

The presence or absence of federal-question jurisdic-

tion is governed by the “well-pleaded complaint

rule,” which provides that federal jurisdiction exists

only when a federal question is presented on the face

of plaintiff's properly pleaded complaint. See Gully

v. First National Bank, 299 U.S. 109, 112-113, 57

S. Ct. 96, 97-98, 81 L.Ed. 70 (1936). The rule makes

the plaintiff the master of the claim; he or she may

avoid the federal jurisdiction by exclusive reliance

on state law.

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (foot-

note omitted); see also Oklahoma Tax Comm'n v. Graham,

109 S.Ct. 1519, 1521 (1989) (per curiam) (discussing

Caterpillar). In the context of employment-related actions,

however, a claim purportedly based solely on state law may,

under appropriate circumstances, be removable because

§ 301 of the LMRA has preempted that particular area of

state law. In other words, “any claim purportedly based on

that pre-empted state law is considered, from its inception,

a federal claim, and therefore arises under federal law.”

Caterpillar, 482 U.S. at 393. Thus, in the cases we now con-

sider, the issues of federal preemption and removability

largely merge; we must focus on whether plaintiffs’ state-law

claims are preempted by § 301 so as to place them within

the scope of the “complete preemption” corollary to the

well-pleaded complaint rule.

In a series of cases, the Supreme Court has made clear that

§ 301 of the LMRA preempts any state-law claim arising from

a breach of a collective bargaining agreement. See Textile

Workers Union v. Lincoln Mills of Alabama, 353 U.S. 448

(1957); Local 174, Teamsters v. Lucas Flour Co., 369 U.S.

95 (1962); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

(1985); see also Lingle v. Norge Division of Magic Chef, Inc.,

Appendix A

6 Smolarck v. Chrysler Nos. 86-2074/87-1387

108 S. Ct. 1877 (1988). The purpose of this rule is to require

that all claims raising issues of labor contract interpretation

be decided according to the precepts of federal labor law in

order to prevent inconsistent interpretations of the substan-

tive provisions of collective bargaining agreements. Lucas

Flour, 369 U.S. at 103.

Thus, Lueck faithfully applied the principle of

§ 301 preemption developed in Lucas Flour: if the

resolution of a state-law claim depends upon the

meaning of a collective bargaining agreement, the

application of state law (which might lead to incon-

sistent results since there could be as many state law

principles as there are States) is pre-empted and fed-

eral labor-law _ principles—necessarily uniform

throughout the nation—must be employed to

resolve the dispute.

Lingle, 108 S. Ct. at 1881 (footnotes omitted).

In Allis-Chalmers v. Lueck, the Court expanded the pre-

emptive reach of § 301 to state-law tort claims. In Lueck the

Court considered whether a state-law cause of action for bad

faith handling of an insurance claim was preempted because

the insurance plan provisions were included in a collective

bargaining agreement. The Court found the state claim was

preempted because an essential element of the tort (i.e., bad

faith handling) required interpretation of the labor agreement

regarding whether the plaintiff was due payments. Because

the duty claimed to have been breached was “derive[d] from

the rights and obligations established by the contract,” the

Court reasoned that “any attempt to assess liability here inev-

itably will involve contract interpretation.” Jd. at 217, 218.

Although the Court limited its holding in Lueck to the spe-

cific facts of that case and made clear that not “every state-law

suit asserting a right that relates in some way to a provision

in a_ collective-bargaining agreement... necessarily is

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 7

pre-empted by § 301,” id. at 220, the Court did attempt to

define the preemptive scope of § 301:

Our analysis must focus, then, on whether the

[state-law cause of action] confers nonnegotiable

state-law rights on employers or employees indepen-

dent of any right established by contract, or, instead,

whether evaluation of the [state-law] claim is inex-

tricably intertwined with consideration of the terms

of the labor contract.

Id. at 213.

At the same time, we must keep in mind that

Section 301 does not ... require that all

“employment-related matters involving unionized

employees” be resolved through collective bargain-

ing and thus be governed by a federal common law

created by § 301... . The Court has stated that “not

every dispute concerning employment, or tangen-

tially involving a _ provision of a collec-

tive-bargaining agreement, is preempted by § 301 or

other provisions of the federal labor law.”

Allis-Chalmers, 471 U.S. 202, 211, 105 S. Ct. 1904,

1911, 85 L.Ed.2d 206 (1985).

Caterpillar, 482 U.S. at 396 n.10 (emphasis added). See also

Oklahoma Tax Comm'n v. Graham, 57 U.S.L.W. 4400, 4405

(1989) (per curiam). The Supreme Court has recently then

reiterated what it stated earlier: “[E}ven under § 301 we have

never intimated that any action relating to a contract within

the coverage of § 301 arises exclusively under that section.”

Franchise Tax Board of Calif. v. Construction Laborers Vaca-

tion Trust, 463 U.S. 1, 25 n.28 (1983); see also Caterpillar,

482 U.S. at 396 n. 10: “The fact that a defendant might ulti-

mately prove that a plaintiffs claims are pre-empted under

the NLRA does not establish that they are removable to fed-

eral court.” Caterpillar, 482 U.S. at 398 (footnote omitted)

(emphasis added).

Appendix A

& Smolarek v. Chrysler Nos. 86-2074/87-1387

In its recent decision addressing asserted § 301 preemption

of state-law claims, the Supreme Court has attempted to clar-

ify its language in Lueck regarding what kind of

“independence” of state-law actions from collective bargain-

ing agreements permits a finding of non-preemption. In

Lingle, 108 S. Ct. 1877 (1988), the Court held that a union-

ized employee’s state-law action based -on Illinois’s tort of

retaliatory discharge for filing a workers’ compensation claim

was not preempted by § 301 because “the state-law remedy

.. Is ‘independent’ of the collective-bargaining agreement

in the sense of ‘independent’ that matters for § 301

pre-emption purposes: resolution of the state-law claim does

not require construing the collective-bargaining agreement.”

108 S. Ct. at 1882 (emphasis added) (footnote omitted). In

so concluding, the Court rejected the contentions of the

employer that the retaliatory discharge action was not inde-

pendent because resolution of the state-law claim would

implicate the same factual analysis as would a grievance

brought under the CBA’s “just cause” provision. Jd. Thus,

Lingle stands as the Court’s latest word on § 301’s preemptive

scope and, as such, will guide our decision in these cases.

The Workers’ Compensation/Retaliatory Discharge Claim

Fleming filed a state-law suit claiming that he was effec-

tively discharged (technically, he was laid off) because of his

expressed intention to file a workers’ compensation claim.

The district court found that Fleming’s state-law claim was

preempted by § 301, and Chrysler argues that this decision

was correct because the retaliatory discharge claim is inextri-

cably intertwined with the terms of the collective bargaining

agreement.

Fleming’s claim is essentially the same as the claim that

the Court addressed in Lingle. In order for a plaintiff to show

retaliatory discharge under Michigan law, he must demon-

strate that he was discharged by his employer in retaliation

for the filing of a lawful claim for workers’ compensation.

Appendix A

Nos. 86-2074/87-1387 © Smolarek v. Chrysler 9

See Sventko v. Kroger Co., 69 Mich. App. 644, 245 N.W.2¢

151, 154 (1976). As the Court reasoned in Lingle: “Each of

these purely factua! questions pertains to the conduct of the

employee and the conduct and motivation of the employer.

Neither of the elements requires a court to interpret any term

of a collective-bargaining agreement.” 108 S. Ct. at 1882.

Consequently, here, as in Lingle, the state-law tort of retalia-

tory discharge creates rights independent of those established

by the collective bargaining agreement and hence is not pre-

empted by § 301. See also Dougherty v. Parsec, Inc., No.

86-3482, slip op. (6th Cir. Apr. 18, 1989); Benton v. Kroger

Co., 635 F. Supp. 56 (S.D. Tex. 1986).

Whether Fleming’s claim of retaliatory discharge under

these circumstances will be deemed to state a proper cause

of action in state court is a question we do not decide. It is

a state claim, sufficiently set out as separate and apart from

a collective bargaining contract claim, and thus avoids pre-

emption. Chrysler has cited Wilson v. Acacia Park Cemetery,

162 Mich. App. 638, 413 N.W.2d 79 (1987), in support of

its position, but applicability of Wilson is a question of state

law to be considered on remand and not by us at this

juncture.” :

Fleming has exclusively relied on a state law retaliation

claim without reference to the collective bargaining agree-

ment. We conclude that this claim is not so “inextricably

intertwined with consideration of the terms of the labor

contract” that this claim is preempted under § 301. Lueck,

471 U.S. at 213. This state law claim “can be resolved without

interpreting the agreement itself... .” Lingle, 108 S. Ct. at

1883.

? Wilson does observe that claims arising under HCRA, like Title VII

claims, are “directed toward enforcement of statutory rights, not con-

tractual rights arising from the collective bargaining agreement.” 162

Mich. App. 638, 413 N.W.2d at 81.

10a

Appendix A

10 Smolarek v. Chrysler Nos. 86-2074/87-1387

Accordingly,we conclude that the district court erred in

finding § 301 preemption with regard to Fleming's retaliatory

discharge claim.

The Handicap Discrimination Claims

Smolarek and Fleming make the following argument

against preemption of their handicap discrimination (HCRA)

claims: The rights created by HCRA are in addition to and

independent of any rights created by the UAW-Chrysler col-

lective bargaining agreement. They argue that these rights

exist regardless of the terms of the collective bargaining agree-

ment and apply equally to union and nonunion employees.

Furthermore, they assert that the individual rights estab-

lished by HCRA are the type of “nonnegotiable” rights that

Lueck exempted from § 301 preemption and that cannot be

bargained away by a collective bargaining unit. In summary,

plaintiffs contend that success on the HCRA claim is not con-

tingent on showing that any provision of the collective bar-

gaining agreement was breached; therefore, the federal policy

concern regarding interpretive uniformity is not implicated

in these cases as set out in Lingle.

Chrysler counters these arguments by asserting that in

these particular cases, evaluation of plaintiffs’ HCRA claims

will require consideration of collective bargaining agreement

terms. The HCRA provisions applicable to Smolarek’s and

Fleming’s claims require that an employer not “(dJischarge

or otherwise discriminate against an individual with respect

to... the terms, conditions, or privileges of employment,” or

“[ljimit, segregate, or classify an employee . . . in a way which

deprives or tends to deprive an individual of employment

opportunities or otherwise adversely affects the status of an

employee because of a handicap that is unrelated to the indi-

vidual’s ability to perform the duties of a particular job or

position.” M.C.L. § 37.1202(1)(b), (c) (emphasis supplied).

Thus, Chrysler asserts that, in the case of a union employee,

the HCRA itself requires reference to the “terms; conditions,

lia

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 11

and privileges of employment”—matters defined by the col-

lective bargaining agreement. Finally, Chrysler and amicus

curiae, Michigan Manufacturers Association, argue that to

allow union employees to pursue this type of HCRA claim

could disrupt and/or by-pass the collective bargaining process

and grievance procedures.

The Supreme Court in Lingle approved, in dicta, the Sev-

enth Circuit’s recognition that “ *§ 301 does not preempt state

antidiscrimination laws, even though a suit under these laws,

like a suit alleging retaliatory discharge, requires a state court

to determine whether just cause existed to justify the

discharge.’ ” 108 S. Ct. at 1885 (quoting Lingle, 823 F.2d at

1046 n.17). The Court went on to note that “the mere fact

that a broad contrattual protection against discriminatory—

or retaliatory—-discharge may provide a remedy for conduct .

that coincidentally violates state law does not make the exis-

tence or the contours of the state law violation dependent

upon the terms of the private contract.” Jd, 108 S. Ct. at

1885. Chrysler, however, seeks to distinguish HCRA from

other state anti-discriminaticn statutes in that HCRA

expressly recognizes that some handicaps are related to job

performance and does not purport to protect persons with

those handicaps. See Carr v. General Motors Corp., 425 Mich.

313, 389 N-W.2d 686, amended by 426 Mich. 1231, 393

N.W.2d 873 (1986) (holding that a plaintiff who concededly

cannot perform the duties of a particular job and who claims

that his employer must accommodate him does not state a

claim under HCRA).

(1) Smolarek's HCRA Claim

On appeal from the district court’s order denying his

motion for remand, Smolarek specifically argues that Chrys-

ler violated its duties under HCRA by refusing to return him

“to his former position or another position consistent with

his medical restrictions and has maintained [him] instead on

a disability lay off indefinitely.” Chrysler responds that this

12a

Appendix A

12 Smolarek v. Chrysler Nos. 86-2074/87-1387

statc-law claim is “substantially dependent” on interpretation

of the collective bargaining agreement's provisions regarding

an employee's right to reinstatement following disability

~ leave and characterizes Smolarek’s claim as asserting a

breach of 1 53 of the collective bargaining agreement, entitled

“Reinstatement after Disability.”

Under HCRA, an employee has the initial burden of prov-

ing that the employer violated the Act. Gloss v. General

Motors Corp., 138 Mich. App. 281, 360 N.W.2d 596, 598

(1984). Smolarek might carry this burden by demonstrating

that Chrysler had refused to reinstate him following his dis-

ability leave because of his seizure disorder which he first

contends does not prevent or disqualify him from working

at his former position. /d. at 598, 599. The fact that the collec-

tive bargaining agreement contains a provision regarding

~ reinstatement does not compel a finding of § 30! preemption.

“The mere fact that a broad contractual protection againsi

discriminatory ... discharge may provide a remedy for con-

duct that coincidentally violates state law does not make the

existence or the contours of the state law violation dependent

upon the terms of the private contract.” Lingle, 108 S. Ct.

at 1885, quoted in Ackerman v. Western Elec. Co., 860 F.2d

1514, 1517 (9th Cir. 1988). Even if Smolarek may have been

able to charge Chrysler under these circumstances with a vio-

lation of the collective bargaining agreement, he did not

choose to do so and this does not mean that § 301, even if

applicable but not utilized by plaintiff, preempts the claim.

See Catepillar, 482 U.S. at 396. This is not a case in which

the duty claimed to have been breached (i.e., the duty not

to discriminatc) arises solely from the collective bargaining

agreement. Cf. International Brotherhood of Electrical Work-

ers v. Hechler, 481 U.S. 851 (1987) (duty to provide safe

workplace derived solely from collective bargaining agree-

ment). Nor is this a case in which evaluation of Chryslez's

prima facie liability will necessarily require determination

of whether the coilective bargaining agreement has been

breached. Cf, Lueck, 471 U.S. 202. :

13a

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 13

Chrysler may, in its own defense, assert that its treatment

of Smolarek was allowed or required by the terms of the col-

lective bargaining agreement and therefore was not based on

Smolarek’s handicap. The assertion of a defense requiring

application of federal law, however, does not support

removal to federal court:

It is true that when a defense to a siate claim is

based on the terms of a collective bargaining agree-

ment, the state court will have to interpret that

agreement to decide whether the state claim sur-

vives. But the presence of a federal question, even

a-§ 301 question, in a defensive argument does not

overcome the paramount policies embodied in the

well-pleaded complaint rule—that the plaintiff is the

master of the complaint, that a federal question

must appear on the face of the complaint, and that

the plaintiff may, by eschewing claims based on fed-

eral law, choose to have the cause heard tn state

court.

Caterpillar, 482 U.S. at 398-99 (emphasis added).

Chrysler and Judge Kennedy, in her separate opinion, seem

to take the position that since plaintiffs may not be able to

prevail on their separate HCRA claim under Michigan law

to the extent they seek accommodation for their medical

restrictions, see Carr v. General Motors and its progeny, then

they must therefore be seeking a contract remedy. At oral

argument, counsel for plaintiffs expressly disclaimed that

they seek any collective bargaining agreement remedy, and

we believe their respective complaints support this proposi-

tion. In any event, under our ruling, they are limited to pur-

suit of remedies sought outside the collective bargaining

agreement context.

We find that Smolarek’s complaint pleaded a cause of

action based solely on Michigan’s HCRA, a statute that

Lingle suggests has not been completely preempted by § 301.

l4a

Appendix A

14 Smolarek v. Chrysler Nos. 86-2074/87-1387

Accordingly, we conclude that the district court erred in

denying Smolarek’s motion for remand to state court.

Smolarek’s complaint makes reference to his reporting to

work “to his former position,” and that “defendant has

refused to return plaintiff to his former position” in violation

of HCRA. It would therefore be necessary for plaintiff to

establish under this allegation that Chrysler violated its

HCRA duty, independent of the collective bargaining agree-

ment, not to deprive him of his former job status “because

of a handicap that is unrelated to the individual’s [Smo-

larek’s] ability to perform the duties of a particular job or

position,” which he had performed for many years satisfacto-

rily. See MCLA § 37.1202(1)(a). Only if found not capable

of working at this former job would the court be concerned

with Smolarek’s alternative contention that he be placed in

“another position consistent with his medical restrictions.”

Complaint, paragraph 16. That Chrysler may defend this lat-

ter alternative claim by reference to its responsibilities under

the collective bargaining agreement in respect to reasonable

accommodation of Smolarek’s “medical restrictions” is, in

our view, no basis to hold that § 301 preemption is mandated

under these circumstances. /nternational Brotherhood of Elec-

trical Workers v. Hechler, 481 U.S. 851, does not direct other-

wise. In footnote 5 of that decision, the Court stated “Hechler

argued below simply that the Union’s duty of care arose from

and was determined by the collective-bargaining agreement

_...” Id, 481 U.S. at 863 n.5. Smolarek makes no such

waiver or abandonment of his theory and assertion of rights

under Michigan’s HCRA. Compare Hechler, 481 U.S. 862,

864 n.5, stating: (“[w]e decline to rule on the impact of

hypothetical-state law when the relevance of such law was

neither presented to or passed upon by the courts below, nor

presented to us in the response to the petition for certiorari”)

(emphasis added).

As the Supreme Court noted in Caterpillar, although the

state court may need to determine whether § 301 preempts

i. 15a

Appendix A

Nos. 86-2074/87-1 387 Smolarek v. Chrysler 15

Smolarek’s claim in light of Chrysler's defense based on the

collective bargaining agreement, this court need not consider

that issue.’ 482 U.S. at 398 n.13. It is sufficient that we find

that Smolarek’s well-pleaded complaint did not arise under

federal law or under the collective bargaining agreement, and

was not unextricably intertwined with the latter.

(2) Fleming's HCRA Claim

In contrast to Smolarek’s appeal from an order denying

remand, Fleming appeals directly from the district court's

decision finding § 301 preemption of Fleming's HCRA and

retaliatory discharge claims. Therefore, we must consider the

preemption issue, whether raised in Fleming's complaint or

by Chrysler’s defenses.

Fleming asserted in his complaint that Chrysler violated

HCRA by failing to provide him with work consistent with

his medical restrictions and by effectually terminating him

because of his handicap. Chrysler may rely upon the collec-

tive bargaining agreement or the Michigan Carr rule that it

is not called upon to accommodate Fleming if his handicap

precludes him from working. See also DesJardins v. The Budd

Co., No. 98092, slip op. (Mich. App. Oct. 25, 1988) (unpub-

lished opinion). To establish prima facie liability under the

HCRA, he must demonstrate (1) that Chrysler took adverse

employment actions against him and (2) that the actions were

motivated by his handicap. As in Lingle, these are “purely

factual questions” relating to the conduct and motivation of

the employer. “Neither of the elements requires a court to

interpret any term of a collective-bargaining agreement.” 108

S. Ct. at 1882.

3Our conclusion that Fleming's HCRA claim is not preempted by

§ 301, infra, however, suggests, but does not compel, the conclusion

that a state court considering the issue in Smolarek’s case might reach.

16a

Appendix A

16 Smolarek v. Chrysler Nos. 86-2074/87-1387

To defend against the HCRA charge, Chrysler must show

that its actions were motivated by some factor other than

Fleming’s handicap. We recognize that Chrysler is likely to

assert as its defense to Fleming’s claim that it based its actions

on the provisions of the labor agreement regarding reinstate-

ment and accommodation. Even this defense, however, does

not require a finding of preemption. In order to resolve the

HCRA claim in light of this defense, a court need only decide

whether Chrysler took actions adverse to Fleming because

of his handicap or rather solely because Chrysler felt bound

by the union agreement to take the actions or for some other

legitimate reason. It is nof necessary to decide at the outset

whether or not Chrysler’s interpretation of the agreement is

correct as a matter of federal labor law. The question is a

factual one: What was Chrysler’s motivation? Under Lingle,

therefore, Fleming’s CRA claim’ is __ sufficiently

“independent” of the collective bargaining agreement to

escape § 301 preemption, for “resolution of the state-law

claim does not require construing the collective-bargaining

agreement.” 108 S. Ct. at 1882 (emphasis added) (footnote

omitted). Accordingly, we conclude under our understanding

of Lingle that the district court erred in finding Fleming’s

HCRA claim preempted by § 301.‘

“This conclusion is not inconsistent with our decision in Maynard

v. Revere Copper Products, Inc., 773 F.2d 733 (6th Cir. 1985). There

we found that an employee’s claim for damages against his union for

breach of the union’s duty of fair representation, brought pursuant to

a provision of Michigan’s HCRA, was preempted by § 301. The holding

in Maynard was based on the fact that the HCRA fair representation

provision “created no new rights for an employee and imposed no duty

on a union not already clearly present under existing federal labor law.”

Id. at 735. Unlike the fair representation duty considered in Maynard,

however, the duty not to discriminate based on handicap is not a duty

already existing in the federal labor law. Therefore, the concerns

regarding interpretative consistency that Maynard raised are not pres-

ent in the instant appeal. McCall v. Chesapeake & Ohio Railway Co.,

844 F.2d 294 (6th Cir.), cert. denied, 109 S.Ct. 196 (1988), did not

involve the question of § 301 preemption.

17a

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 17

(3) Other Case Law Precedent

We decided only recently a comparable case involving a

claim under the Michigan HCRA and a defendant automo-

bile maker to reverse a district court judgment of § 301 pre-

emption and direct that plaintiff employee’s claim be

remanded to state court. DeRoseau v. Ford Motor Co., Nos.

87-1959, 88-1153, slip op. (6th Cir. Jan. 20, 1989). This result

obtained despite the existence of potential collective bargain-

ing agreement remedies. Holding Lingle determinative,

another court reached the same result under a California

handicap discrimination statute. Ackerman v. Western Elec.

Co., Inc., 860 F.2d 1514 (9th Cir. 1988). The same result was

indicated as to a similar Oregon law in Miller vy. AT&T Net-

work Systems, 850 F.2d 543 (9th Cir. 1988).° Other federal

district courts in Michigan have reached the same result we

have indicated here on the question of whether § 301 or fed-

*Ackerman did discuss the circumstance that under the California

laws the employer might be directed to accommodate the claimant's

handicap. The attempted distinction drawn between the statute and

the Michigan law on accommodation is, in our view, immaterial. The

employer's defense in Ackerman was the CBA provision “which

broadly prohibits discrimination on the basis of race, color, religion,

sex, age ... or because of handicap,” and that interpretation and

enforcement of that CBA clause was “inextricably intertwined” with

the asserted state law handicap claim. /d. at 1517. This is the same

argument made by Chrysler. Ackerman points out that it was a matter

of affirmative defense to show whether the employee cou!d perform

the job duties “in a manner which does not endanger his or her health

and safety or the health and safety of others.” Jd. at 1518. Chrysler,

in the instant case, may raise a similar affirmative defense in state court

under the Michigan statutory scheme. Miller was formulated before

Lingle, and refers to Lingle only in n.6 as confirming “the approach

we have taken.” and reaffirming “the holding of A/lis-Chalmers.” 850

F.2d at 551. Oregon’s HCRA “declared discrimination based on physi-

cal handicap an unlawful employment practice” regardless of whether

a CBA contained similar provision, as does the Michigan law. /d. at

550. Miller distinguished the district court's decision in Fleming

reported at 659 F. Supp. 392 (E.D. Mich. 1987). ,

18a

Appendix A

18 Smolarek v. Chrysler Nos. 86-2074/87-1387

eral labor law preempts a state handicap claim. See Aazor

v. General Motors, 585 F. Supp. 621 (E.D. Mich. 1984); Turk

y. General Motors, 637 F. Supp. 739 (E.D. Mich. 1986); Nolte

vy. Blue Cross/Blue Shield of Mich., 651 F. Supp. 576 (E.D.

Mich. 1986) (holding Stephens v. Norfolk & Western Ry., 792

F.2d 576 (6th Cir. 1986) and Maynard v. Revere Cooper

Prod., 773 F.2d 733 (6th Cir. 1985) inapposite); Twombley

v. Ford Motor Co., 666 F. Supp. 972 (E.D. Mich. 1987). These

cases were decided before Lingle and Caterpillar. For cases

in jurisdictions other than Michigan, see Austin v. Northeast

Tel. & Tel., 644 F. Supp. 763 (D. Mass.-1986) and Elstner

v. Southwestern Bell Tel. Co., 659 F. Supp. 1328, 1344 (S.D.

Tex. 1987). See also DeSoto v. Yellow Freight Systems, 86|

F.2d 536 (9th Cir. 1988) (reversing a prior decision of pre-

emption under § 301 in light of Lingle).

In sum, based primarily upon Lingle and upon the other

‘precedent discussed, we hold that because resolution of nei-

ther Fleming’s retaliatory discharge claim nor his handicap

discrimination claim would necessitate interpretation of a

collective bargaining agreement, those claims are not pre-

empted by § 301. The judgment of the district court in Flem-

ing’s case is accordingly REVERSED, and the matter

REMANDED for further proceedings. We further find that

because Smolarek’s complaint asserted solely ‘a violation of

Michigan’s HCRA and presented no question of federal law,

removal to federal court was improper in this case, and the

district court erred in denying Smolarek’s motion to remand.

The order of the district court denying remand is

REVERSED, and the case is ordered REMANDED to Michi-

gan state court.

19a

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 19

KENNEDY, Circuit Judge, concurring in part and dissent-

ing in part. I concur with the majority that Fleming's retalia-

tory discharge claim is not preempted by § 301 because reso-

lution of that claim does not require interpretation of the

collective bargaining agreement; reversal of the District

Court's judgment on the issue is therefore appropriate. |

respectfully dissent, however, from the majority’s failure to

hold that certain aspects of plaintiffs’ claims alleged to be

under the Michigan Handicappers’ Civil Rights Act (HCRA)

are preempted by § 301. On the basis of the pleadings, as well

as looking beyond the pleadings, the standard followed in

International Brotherhood of Electrical Workers, AFL-CIO v.

Hechler, 481 U.S. 851 (1987), I would hold that Smolarek’s

claim is preempted to the extent that he claims a right to rein-

statement to a position other than his former job; and that

Fleming’s claim is preempted to the extent that he claims

a right beyond adaptive aids or devices to enable him to per-

form his former job. I would therefore find that removal juris-

diction exists based upon a federal question; I would

AFFIRM the District Court’s order denying Smolarek’s

motion to remand to Michigan state court, and would

AFFIRM the District Court’s grant of summary judgment

to Chrysler with respect to the preempted aspects of Flem- .

ing’s HCRA claim. I would REMAND the non-preempted

portion of plaintiffs’ claims to District Court to exercise its

discretion whether to retain the remaining pendent state law:

claims or to remand the pendent claims to the state court.

I. The Standard for Preemption

I agree with the majority on the applicable standard to

determine preemption under § 301. State law claims are pre-

empted unless the state law “confers non-negotiable state-law

rights’... independent of any right established by contract.

or, instead, whether evaluation of the [state-law] claim is

inextricably intertwined with consideration of the terms of

the labor contract.” A/llis-Chalmers Corp. v. Lueck, 471 U.S.

20a

Appendix A

20 Smolarek v. Chrysler Nos. 86-2074/87-1387

202, 213 (1985) (emphasis added). See Lingle v. Norge Divi-

sion of Magic Chef, Inc., 108 S. Ct. 1877, 1882 (1988)

(state-law remedy is independent if “resolution of the

state-law claim does not require construing the collective bar-

gaining agreement”). I disagree, however, on the majority’s

application of that standard to the plaintiffs’ claims.

Il. The Pleadings

In general, the question of whether removal jurisdiction

exists based upon a federal question is answered by reviewing

the complaint as of the time of removal. See O'Halloran v.

University of Washington, 856 F.2d 1375, 1379 (9th Cir.

1988); Libhart v. Santa Monica Dairy Co., 592 F.2d 1062,

1065 (9th Cir. 1979); 14A Wright, Miller, & Cooper, Federal

Practice and Procedure, § 3721, at 213 & n.79 (and cases cited

therein).' The majority notes that plaintiffs’ counsel expressly

disclaimed any collective bargaining remedy at oral argu-

ment, and believes that plaintiffs’ complaints support the dis-

claimer. See Majority Opinion at 13.

With respect to plaintiffs’ disclaimer, removal jurisdiction

is not tested at the time of oral argument; rather, the Court

must look to the face of the complaint at the time of removal.

There is no indication in the record that plaintiffs attempted

to amend their complaint at that time, and they may not

effectively make such an amendment upon appellate review.

The complaints and the substance of plaintiffs’ claims do

~ present a § 301 federal question.

At the time of removal, Smolarek claimed a right to rein-

statement to “his former position or another position consis-

tent with his medical restrictions.” Smolarek’s Complaint,

1 16, Jt App 5-6 (emphasis added). To the extent that Smo-

For the exception to the general rule, see Libhart, 592 F.2d at 1066

(federal district court’s judgment may be upheld even if no » Semnoue

jurisdiction if case was tried on the merits):

2la

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 21

larek asks for reinstatement to another position, his claim

is clearly preempted. There is no right independent of the

collective bargaining agreement to be reinstated to another

job consistent with one’s medical disability under the HCRA.

Carr v. General Motors Corp., 425 Mich. 313 (1986):

Desjardins v. The Budd Co., C.A. No. 98092 (Mich. App.

1988) (unpublished opinion).

Chrysler contends that not only is there no duty under

HCRA to reinstate Smolarek to a another position, there is

also no duty to reinstate him to his former position even if

its reason for failing to do so was unrelated to his ability to

perform the requirements of that job. The basis of this con-

tention is that Chrysler had already accommodated Smo-

larek’s epilepsy for many years under the collective bargain-

ing agreement, and that he could not have performed the

original requirements of his job as a tool and die maker with-

out this contractual accommodation in the collective bargain-

ing agreement.

This is a difficult question to answer. The Michigan

Supreme Court has made it clear that an employer has no

duty to accommodate an employee's medical restrictions that

are related to his ability to perform the duties of a particular

job. Carr, 425 Mich. 313. The HCRA prohibits discharge

only for “a handicap that is unrelated to the individual's abil-

ity to perform the duties of a particular job or position.”

M.C.L. § 37.1202 (emphasis added). However, the Michigan

courts have not addressed the precise question of whether

the HCRA refers to an individual's ability to perform the

job as originally defined. or to perform the standards of the

job as redefined or “carved-out” for a particular employee.

The Michigan courts might hold that the proper reference

point for Smolarek’s ability to perform his former job is the

“carved-out” position. Assuming that the Michigan courts

so hold, Smolarek would have a claim under the HCRA if

he was able to perform the “carved-out” job from which he

22a

Appendix A

22 Smolarek v. Chrysler Nos. 86-2074/87-1387

was discharged, and the discharge was due to an unfounded

fear of epileptics. | leave to another day whether the right

‘under the HCRA would be parallel to, or, as I believe,

“inextricably intertwined” with, the terms of the collective

bargaining agreement. Resolution of this issue may depend

on how the right is defined as a matter of state law. I make

no attempt to resolve this question today, since it would

merely be dicta in a dissent.

The majority fails to note that Fleming’s claim ‘is also pre-

empted to the extent that he claims a right to reinstatement

to another position. Such rights are “inextricably

intertwined” with the contract, and must be pursued under

§ 301. Fleming’s complaint states that Chrysler breached its

duties under the HCRA by “[flailing to suggest and/or imple-

ment reasonable accommodations so as to allow Plaintiff to

work despite his physical determinable handicap in violation

of MCLA 37.1101 et. seg.” Fleming’s Complaint, Count Il

4 3(c), Jt App 12. Reviewing the complaint as of the time

of removal, it is clear that Fleming was requesting an accom-

modation that has been held outside of HCRA’s scope by

Carr. This conclusion is also evident in Fleming’s deposition

testimony, in which he admits that he cannot perform the

requirements of his former job without being accommodated.

See Fleming Deposition, Jt App 177. The only source of

Chrysler’s duty to make “provisions [for] me to do my job,”

id, is the collective bargaining agreement. It is, however, pos-

sible to construe Fleming’s claim as requesting “adaptive aids

or devices ... thereby enabling [him] to perform the specific

requirements of [his job as a painter-glazer].” M.C.L.

§ 37.1202(1)(g). To that extent, his claim would not be pre-

empted, and would be a pendent state-law claim analogous

to Smolarek’s “pretext” claim.

lil. Beyond the Pleadings

Even if this Court were not required to test removal juris-

diction as of the time the removal petition was filed, those

23a

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 23

aspects of Smolarek’s and Fleming's claims beyond their for-

mer positions are preempted under the complete preemption

doctrine. As explained by the Supreme Court in Hechler, 481

U.S. 851, this Court must look beyond the pleadings to the

entire claim, and determine whether or not it is based on the

collective bargaining agreement, rather than on

non-negotiable rights conferred under the HCRA.

In Hechler, the plaintiff argued that her union had breached

its duty of care to ensure a safe workplace. She contended

that the collective bargaining agreement was not implicated

and that she was solely relying on state common law. In find-

ing her claim preempted, the Supreme Court refused to

accept her state-law argument on its face. Instead, the Court

went beyond the pleadings and ascertained that although the

employer had such a duty, the union’s duty flowed solely from

the collective bargaining agreement:

Respondent’s allegations of negligence assume sig-

nificance if—and only if—the Union, in fact, had

assumed the duty of care that the complaint alleges

the Union breached. The collective bargaining

agreement between the Union and Florida Power

. contain[s] provisions on safety and working

requirements for electrical apprentices on which

Hechler could try to base an argument that the

Union assumed an implied duty of care. In order

to determine the Union's tort liability, however, a

court would have to ascertain, first, whether the col-

lective bargaining agreement in fact placed an

implied duty of care on the Union... .

481 U.S. at 861-62 (footnote omitted). The plaintiff could

not avoid § 301 preemption by simply asserting that she had

a state-law tort claim.

As in Hechler, Smolarek and Fleming ask us to wear blind-

ers. Plaintiffs conceded during oral argument that their claim

to accommodation to another position under the HCRA was

24a

Appendix A

24 Smolarek v. Chrysler Nos. 86-2074/87-1387

eliminated by the Michigan Supreme Court’s holding in Carr,

425 Mich. 313. They attempted to sidestep this apparent con-

cession, however, through their “floor of rights” theory.

Under this theory, they posit that although an employer need

not provide for a right to reinstatement following a disability,

if it does provide that right—either through the coilective

bargaining agreement or voluntarily—it must not discrimi-

nate in giving that right to all groups. We must, however,

examine whether the “floor of rights” in this case derive from

non-negotiable rights conferred by the HCRA, or if the

genes’s is from negotiable rights, whether derived from the

collective bargaining agreement or voluntary action.

Appellants analogize their “floor of rights” theory to race,

sex, and age discrimination cases. The problem with this

analogy is that race, sex, and age discrimination are classic

examples of “nonnegotiable rights ... independent of any

right established by contract.” Allis-Chalmers, 471 U.S. at

213. These cases fall under the doctrine of complete parallel-

ism, as explained by the Supreme Court in Lingle:

[E]ven if dispute resolution pursuant to a collec-

tive-bargaining agreement, on the one hand, and

state law, on the other, would require addressing

precisely the same set of facts, as long as the

state-law claim can be resolved without interpreting

the agreement itself, the claim is “independent” of

the agreement for § 301 preemption purposes.

108 S. Ct. at 1883. In race, sex, and age cases, interpretation

of the collective bargaining contract is unnecessary. The same

case could be heard in a state tribunal considering the

employer’s motive for terminating the employee, or by an

arbitrator considering whether the employer was justified

under a “just cause” collective bargaining provision. The

right to be free of race, sex, or age discrimination is indepen-

dent of any ancillary right contained in a collective bargain-

ing agreement. ri

25a

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 25

Likewise, if an employee is terminated for a handicap

unrelated to his ability to perform the functions of his job,

interpretation of a collective bargaining agreement is unnec-

essary to his claim. The HCRA has provided a nonnegotiable

right to be free of this type of discrimination. In contras’,

however, the HCRA confers no right of accommodatioi..

Accommodation is therefore a negotiable right provided

either by contract, here the collective bargaining agreement.

or voluntarily. To allow the extension of HCRA’s

non-discrimination language once negotiable rights are given

would impermissibly bootstrap an accommodation require-

ment into the HCRA. Thus, the “floor of rights” argument

simply restates that which is impermissible: “you are not

required to give rights, i.e., accommodate employees, but .

once you do, you cannot discriminate with respect to that

discrimination.” |

Although the majority feels otherwise, plaintiffs’ position

is not strengthened by the Ninth Circuit's finding that there

was no § 301 preemption in Ackerman v. Western Elec. Co..

860 F.2d 1514 (9th cir. 1988), and in Miller AT&T Network

Systems, 850 F.2d 543 (9th Cir. 1988). Those cases found

that Ackerman’s (California) and Miller’s (Oregon) handicap

discrimination claims were not preempted by § 301 because

they did not “require interpretation of a collective bargaining

agreement.” Ackerman, 860 F.2d at 1517. The key difference

between these cases and the Michigan HCRA, however. is

that the Oregon and California statutes require accommoda-

tion. Thus, accommodation is a non-negotiable right under

Oregon-and California law. Under the doctrine of parallel-

ism, the state-law claim is not preempted because-it is unnec-

essary to interpret the collective bargaining agreernent—the

right is provided by statute regardless of what the agreement

may or may not provide.

Lastly, the majority cites a number of federal district court

cases for the proposition that “§ 301 or federal labor law [does

not] preempt[ ] a state handicap claim.” Majority Opinion

26a

Appendix A

26 Smolarek v. Chrysler Nos. 86-2074/87-1387

at 17-18. The cited cases neither undermine, nor are they in

conflict with, my position. Plaintills’ claims in those cases

were not preempted because they were not dependent on

interpreting the collective bargaining agreement. See, e¢.g.,

Turk y. General Motors Corp., 637 F. Supp. 739, 740 n.1 (E.D.

Mich. 1986) (“plaintiffs claims here do not in any way

depend upon an interpretation of the collective bargaining

agreement”); Nolte v. Blue Cross Blue Shield of Michigan, 65\

F. Supp. 576, 577 (plaintiffs HCRA claim not “inextricably

intertwined with consideration of the terms of the labor

contract”); Austin v. New England Telephone and Telegraph

Co., 644 F. Supp. 763, 768 (D. Mass. 1986) (“Here, none of

Austin’s state claims appear from the complaint to arise as

a consequence of rights created in the collective bargaining

agreement.”). As the Court explains in Nolte, the analysis of

whether rights are inextricably intertwined with the terms of

the collective bargaining agreement “saves state civil rights

laws, like [HCRA], from wholesale preemption.” 651 F. Supp.

at 577 (emphasis added).

Unlike the cases cited by the majority, Smolarek’s and

Fleming’s claims to accommodation to other positions,

regardless of the terminology used, derive solely from nego-

tiable rights under the collective bargaining agreement. Such

rights are not “independent of any right established by con-

tract, [and are] inextricably intertwined with consideration

of the terms of the labor contract,” Allis- Chalmers, 471 U.S.

at 213. The claims are therefore preempted under § 301.

eee

IV.

Smolarek & Fleming v. Chrysler sets an overbroad prece-

dent against finding § 301 preemption when the collective

bargaining agreement is clearly implicated. The danger 1s

clear:

[A]s we explained in Lueck, “[t}he need to pre-

serve the effectiveness of arbitration was one of the

27a

Appendix A

Nos. 86-2074/87-1387 Smolarek v. Chrysler 27

central reasons that underlay the Court's holding in

Lucas Flour.” 471 U.S., at 219. “A rule that permit-

ted an individual to sidestep available grievance

procedures would cause arbitration to lose most of

its effectiveness, ... as well as eviscerate a central

tenet of federal labor contract law under § 301 that

it is the arbitrator, not the court, who has the respon-

sibility to interpret the labor contract in the first

instance.” [citations omitted]. Today’s decision

should make clear that interpretation of collective-

bargaining agreements remains firmly in the arbitral

realm; judges can determine questions of state law

involving labor-management relations only if such

questions do not require construing collec-

tive-bargaining agreements.

Lingle, 108 S. Ct. at 1884 (footnote omitted).

I would AFFIRM the District Courts’ finding of preemp-

tion to the extent that plaintiffs request reinstatement to other

positions, and would REMAND the cases to the District

Court on the issue of whether to retain the remaining pendent

state-law claims.

28a

Appendix B

Nos. 86-2074/87-1387

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STANLEY SMOLAREK (86-2074),

RALPH FLEMING (87-1387),

Plaintiffs-Appellants,

ORDER

CHRYSLER CORPORATION, EtTc., Et AL.,

Defendants-Appellees

BEFORE: ENGEL, Chief Judge, KEITH, MERRITT, KEN-

NEDY, MARTIN, JONES, KRUPANSKY,

WELLFORD, MILBURN, GUY, NELSON,

RYAN, BOGGS and NORRIS, Circuit Judges

A majority of the Judges of this Court in regular active

service have voted for rehearing of this case en banc. Sixth Circuit

Rule 14 provides as follows:

The effect of the granting of a hearing en banc shall be to

vacate the previous opinion and judgment of this Court, to

stay the mandate and to restore the case on the docket as a

pending appeal.

Accordingly, it is ORDERED that the previous decision and

judgment of this Court is vacated, the mandate is stayed and this

case is restored to the docket as a pending appeal.

The Clerk will direct the parties to file supplemental briefs

and will schedule this case for oral argument as soon as

practicable.

ENTERED BY ORDER OF THE COURT

(s) Leonard Green, Clerk

29a

Appendix C

Nos. 86-2074/87-1387

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STANLEY SMOLAREK,

Plaintiff-Appellant,

(86-2074) ON APPEAL from the

United States District

v. Court for the Eastern

District of Michigan.

CHRYSLER CORPORATION,

Defendant-Appellee.

RALPH FLEMING,

Plaintiff-Appellant,

(87-1387)

v. ON APPEAL from the

United States District

CHRYSLER CORPORATION, a Court for the Eastern

Delaware Corporation; Louis District of Michigan.

EBALDI and LYNDON VERLYNDON,

jointly and severally,

Defendants-Appellees.

Decided and Filed October 3, 1988

Before: WELLFORD and NELSON, Circuit Judges; and

PECK, Senior Circuit Judge.

30a

Appendix C

Smolarek, et al. vy. Chrysler Corp. Nos. 86-2074/87-1387

PER CURIAM. These combined cases present close and

difficult questions regarding whether § 301 of the Labor Manage-

ment Relations Act, 29 U.S.C.-§ 185, preempts plaintiffs’ actions

claiming violations of Michigan’s Handicappers’ Civil Rights Act,

M.C.L. § 37.1101 et seg. (HCRA), and retaliatory discharge in

violation of public policy relating to the filing of workers’ compen-

sation claims. In each case the district court found plaintiff's state

cause of action preempted by § 301 and dismissed the suit for

failure to exhaust remedies. The Supreme Court’s recent decision

in Lingle v. Norge Division of Magic Chef, Inc., US.

, 108 S. Ct. 1877 (1988), holding that an action under

Illinois law for the tort of retaliatory discharge for filing a workers’

compensation claim was not preempted by § 301, guides our

decision in these cases.

SMOLAREK

Smolarek was employed by Chrysler from 1953 until his lay

off in 1984, and was a member of the UAW. Since an injury in

1955, Smolarek has suffered from a seizure disorder, which

normally has been controlled by medications. In October 1984, he

suffered a seizure at work and was absent from work for the

following two weeks. When he returned to work, he was informed

that no jobs consistent with the medical restrictions he had

worked with since 1955 were available. In 1985 Smolarek again

attempted to return to work and was told no work was available

within his restrictions. Plaintiff alleges that at this time his

foreman made the comment, “Stan, what if you fall down and

other people in the plant see you and you are having a seizure.

The other people could have a heart attack.”

In April 1986, Smolarek filed a two count complaint in

Michigan state court alleging discrimination under the HCRA

1 The UAW has filed an amicus curiae brief in the Smolarek appeal

arguing for reversal of the district court’s judgment.

3la

Appendix C

Smolarek, et al. vy. Chrysler Corp. Nos. 86-2074/87-1387

and workers’ compensation retaliation. He claimed that Chrysler

discriminated against him by refusing to return him to his former

position based on a handicap unrelated to his ability to perform

his job duties, and that Chrysler also refused to reinstate him

based on its fear that he might injure himself during a seizure on

the job and file a workers’ compensation claim. Smolarek did not

allege any violation of the collective bargaining agreement be-

tween the UAW and Chrysler.

Chrysler removed the case to federal district court claiming

fedéral question jurisdiction. Smolarek filed a motion to remand,

which the district court denied on the grounds that § 301 pre-

empted Smolarek’s claims. The district court then dismissed

Smolarek’s action because he had failed to exhaust his intra-

union remedies before filing a § 301 action. Smolarek now appeals

the district court’s denial of his motion to remand solely on the

handicap discrimination issue.

FLEMING

Chrysler hired Fleming, also a UAW member, in 1976 as a

painter-glazer. In August 1984, Fleming was injured while leaving

the Chrysler plant where he worked, and as a result suffered some

loss of balance, severe headaches, muscle spasms in his back, and

vomiting. Fleming continued to work with some medical restric-

tions on the types of tasks he could perform. Fleming claims that

following his injury he was given job assignments inconsistent

with his limitations. Fleming further contends that this “harass-

ment” increased when he expressed his intent to file a workers’

compensation claim. In October 1984, Fleming was laid off

indefinitely. Chrysler claims hisJay off was due to lack of work, as

allowed by the collective bargaining agreement. Fleming claims

that, while technically on lay off, he was told he was being

dismissed.

32a

Appendix C

Smolarek, et al. vy. Chrysler Corp. Nos. 86-2074/87-1387

In December 1984, Fleming grieved his lay off. This griev-

ance was pursued to the third step of a four-step grievance

procedure before Fleming voluntarily terminated hs employment

in May 1986 by relinquishing his recall rights as part of a

settlement of his workers’ compensation claim filed in February

1985.

Fleming filed a complaint in state court in July 1985, alleging

violation of HCRA, discharge in retaliation for expressed intent to

file a workers’ compensation claim, breach of implied duty of

good faith and fair dealing, and intentional interference with his

quiet and peaceful pursuit of a lawful occupation. In August 1985,

Chrysler removed the suit to federal district court. In October

1985, the district court denied Fleming’s motion to remand on the

grounds that the latter two counts of Fleming’s complaint con-

ferred original jurisdiction on the federal court.

Chrysler then filed a motion for summary judgment arguing

that Fleming’s claims were preeempted by §301. Finding that all

of Fleming’s claims were preempted, the district court granted the

motion and dismissed the case. Fleming appeals this dismissal

only with regard to the HCRA and retaliatory discharge claims.

Removal and § 301 Preemption

Ordinarily, the question of removability to federal court

under 28 U.S.C. § 1441 turns upon application of the “well-

pleaded complaint rule.” Federal jurisdiction exists only when a

plaintiff's properly pleaded complaint presents a federal question

on its face. Caterpillar, Inc. v. Williams, 107 S. Ct. 2425, 2429

(1987). In the context of employment-related actions, however, a

claim purportedly based solely on state law may be removable

because § 301 of the LMRA has preempted that area of state law.

In other words, “any claim purportedly based on that pre-empted

state law is considered, from its inception, a federal claim, and

therefore arises under federal law.” Jd. at 2430. Thus, in the cases

33a

Appendix C

Smolarek, et al. vy. Chrysler Corp. Nos. 86-2074/87-1387

we now consider, the issues of federal preemption and removabil-

ity largely merge; we must focus on whether plaintiffs’ state-law

claims are preempted by § 301 so as to place them within the

scope of the “complete preemption” corollary to the well-pleaded

complaint rule.

In a series of cases, the Supreme Court has made clear that

§ 301 of the LMRA preempts any state-law claim arising from a

breach of a collective bargaining agreement. See Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202 (1985); Local 174, Teamsters,

Chauffeurs, Warehousemen, & Helpers of America v. Lucas Flour

Co., 369 U.S. 95 (1962); Textile Workers Union of America v.

Lincoln Mills of Alabama, 353 U.S. 448 (1957); see also Lingle

v. Norge Division of Magic Chef, Inc., 108 S. Ct. 1877 (1988).

The purpose of this rule is to require that all claims raising issues

of labor contract interpretation be decided according to the

precepts of federal labor law in order to prevent inconsistent

interpretations of the substantive provisions of collective bargain-

ing agreements. Lucas Flour, 369 U.S. at 103.

Thus, Lueck faithfully applied the principle of § 301

preemption developed in Lucas Flour, if the resolution of a

state-law claim depends upoon the meaning of a collective-

bargaining agreement, the application of state law (which

might lead to inconsistent results since there could be as

many state-law principles as there are States) is pre-empted

and federal labor-law principles—necessarily uniform

throughout the nation—must be employed to resolve the

dispute.

Lingle, 108 S. Ct. at 1881 (footnotes omitted).

In Allis-Chalmers v. Lueck, the Court expanded the preemp-

tive reach of § 301 to state-law tort claims. In Lueck the Court

considered whether a state-law cause of action for bad faith

handling of an insurance claim was preempterd because the

insurance plan provisions were included in a collective bargaining

34a

Appendix C

Smolarek, et al. v. Chrysler Corp. Nos. 86-2074/87- 1387

agreement. The Court found the state claim was preempted

because an essential element of the tort (i.e., bad faith handling)

required interpretation of the labor agreement regarding whether

the plaintiff was due payments. Because the duty claimed to have

been breached “derive[d] from the rights and obligations estab-

lished by the contract,” the Court reasoned that “any attempt to

assess liability here inevitably will involve contract interpreta-

tion.” Id. at 217, 218.

Although the Court limited its holding in Lueck to the

specific facts of that case and made clear that not “every state-law

suit asserting a right that relates in some way to a provision in a

collective-bargaining agreement . . . necessarily is pre-empted by

§ 301,” id. at 220, the Court did attempt to define the preemptive

scope of § 301:

Our analysis must focus, then, on whether the [state-law

cause of action] confers non-negotiable state law rights on

employers or employees independent of any right established

by contract, or, instead, whether evaluation of the [state-

law] claim is inextricably intertwined with consideration of

the terms of the labor contract.

Id. at 213.

In its recent decision addressing asserted § 301 preemption

of state-law claims, the Supreme Court has attempted to clarify

its language in Lueck regarding what kind of “independence” of

state-law actions from collective bargaining agreements permits a

finding of non-preemption. In Lingle v. Norge Division of Magic

Chef, Inc., 108 S. Ct. 1877 (1988), the Court held thai a

unionized employee’s state-law action based on Illinois’ tort of

retaliatory discharge for filing a workers’ compensation claim was

not preempted by § 301 because “the state-law remedy . . . is

‘independent’ of the collective-bargaining agreement in the sense

of ‘independent’ that matters for § 301 pre-emption purposes:

resolution of the state-law claim does not require construing the

35a

Appendix C

Smolarek, et al. v. Chrysler Corp. Nos. 86-2074/87-1387

collective-bargaining agreement.” 108 S. Ct. at 1882 (emphasis

added) (footnote omitted). In so concluding, the Court rejected

the contentions of the employer that the retaliatory discharge

action was not independent because resolution of the state-law

claim would implicate the same factual analysis as would a

grievance brought under the CBA’s “just cause” provision. Jd.

Thus, Lingle stands as the Court’s latest word on § 301’s preemp-

tive scope and, as such, will guide our decision in these cases.

The Workers’ Compensation/Retaliatory Discharge Claim

Fieming filed a state-law suit claiming that he was effectively

discharged (technically, he was laid off) because of his expressed

intention to file a workers’ compensation claim. The district court

found that Fleming’s state-law claim was preempted by § 301,

and Chrysler argues that this decision was correct because the

retaliatory discharge claim is inextricably intertwined with the

terms of the collective bargaining agreement.

Fleming’s claim is essentially the same as the claim that the

Court addressed in Lingle. In order for a plaintiff to show

retaliatory discharge under Michigan law, he must demonstrate

that he was discharged by his employer in retaliation for the filing

of a lawful claim for workers’ compensation. See Sventko v.

Kroger Cw, 69 Mich. App. 644, 245 N.W.2d 151, 154 (1976). As

the Court reasoned in Lingle: “Each of these purely factual

questions pertains to the conduct of the employee and the conduct

and motivation of the employer. Neither of the elements requires

a court to interpret any term of a collective-bargaining agree-

ment.” 108 S. Ct. at 1882. Consequently, here, as in Lingle, the

state-law tort of retaliatory discharge creates rights independent

of those established by the collective bargaining agreement and

hence is not preempted by § 301. Accordingly, we conclude that

the district court erred in finding § 301 preemption with regard to

Fleming’s retaliatory discharge claim.

36a

Appendix C

Smolarek, et al. vy. Chrysler Corp. Nos. 86-2074/87-1387

The Handicap Discrimination Claims

Smolarek and Fleming make the following argument against

preemption of their handicap discrimination (HCRA) claims:

The rights created by HCRA are in addition to and independent

of any rights created by the UAW-Chrysler collective bargaining

agreement. They argue that these rights exist regardless of the

terms of the collective bargaining agreement and apply equally to

union and nonunion employees. Furthermore, they assert that the

individual rights established by HCRA are the type of “nonnego-

tiable” rights that Lueck exempted from § 301 preemption and

that cannot be bargained away by a collective bargaining unit. Jn

summary, plaintiffs contend that success on the HCRA claim is

not contingent on showing that any provision of the collective

bargaining agreement was breached; therefore, the federal policy.

concern regarding interpretive uniformity is not implicated in

these cases as set out in Lingle.

Chrysler counters these arguments by asserting that in these

particular cases, evaluation of plaintiffs’ HCRA claims will re-

quire consideration of collective bargaining agreement terms. The

HCRA provisions applicable to Smolarek’s and Fleming’s claims

require that an employer not “[d]ischarge or otherwise discrimi-

nate against an individual with respect to. . . the terms, condi-

tions, or privileges of employment,” or “[l]imit, segregate, or

classify an employee . . . in a way which deprives or tends to

deprive an individual of employment opportunities or otherwise

adversely affects the status of an employee because of a handicap

that is unrelated to the individual’s ability to perform the duties of

a particular job or position.” M.C.L. § 37.1202(1)(b), (c) (em-

phasis supplied). Thus, Chrysler asserts that, in the case of a

union employee, the HCRA itself requires reference to the

“terms, conditions, and privileges of employment” — matters

defined by the collective bargaining agreement. Finally, Chrysler

argues that to allow union employees to pursue this type of

ee es ee

37a

Appendix C

Smolarek, et al. vy. Chrysler Corp. Nos. 86-2074/87-1387

HCRA claim could disrupt and/or bypass the collective bargain-

ing process and grievance procedures.

The Supreme Court in Lingle approved, in dicta, the Seventh

Circuit’s recognition that “§ 301 does not preempt state anti-

discrimination laws, even though a suit under these laws, like a

suit alleging retaliatory discharge, requires a state court to deter-

mine whether just cause existed to justify the discharge.” 108 S.

Ct. at 1885 (quoting Lingle v. Norge Division of Magic Chef, Inc.,

823 F.2d 1031, 1046 n.17 (7th Cir. 1987) ). The Court went on to

note that “the mere fact that a broad contractual protection

against discriminatory—or retaliatory—discharge may provide a

remedy for conduct that coincidentally violates state law does not

make the existence or the contours of the state law violation

dependent upon the terms of the private contract.” Jd. Chrysler,

however, seeks to distinguish HCRA from other state anti-

discrimination statutes in that HCRA expressly recognizes that

some handicaps are related to job performance and does not

purport to protect persons with those handicaps. See Carr v.

General Motors Corp., 425 Mich. 313, 389 N.W.2d 686, amended

by 426 Mich. 1231, 393 N.W.2d (1986).

(1) Smolarek’s HCRA Claim

On appeal from the district court’s order denying his motion

for remand, Smolarek specifically argues that Chrysler violated its

duties under HCRA by refusing to return him “to his former

position or another position consistent with his medical restric-

tions and has maintained [him] instead on a disability lay off

indefinitely.” Chrysler responds that this state-law claim is “sub-

stantially dependent” on interpretation of the collective bargain-

ing agreement’s provisions regarding an employee’s right to

reinstatement following disability leave and characterizes Smo-

larek’s claim as asserting a breach of 953 of the collective

bargaining agreement, entitled “Reinstatement after Disability.”

38a

Appendix C

Smolarek, et al. v. Chrysler Corp. Nos. 86-2074/87- 1387

Under HCRA, an employee has the initial burden of proving

that the employer violated the Act. Gloss v. General Motors

Corp., 138 Mich. App. 281, 360 N.W.2d 596, 598 (1984).

Smolarek might carry this burden by demonstrating that Chrysler

had refused to reinstate him following his disability leave because

of his seizure disorder. See id. The fact that the collective

bargaining agreement contains a provision regarding reinstate-

ment does not compel a finding of § 301 preemption. This is not a

case in which the duty claimed to have been breached (i.e., the

duty not to discriminate) arises solely from the collective bargain-

ing agreement. Cf. International Brotherhood of Electrical Work-

ers v. Hechler, 107 S. Ct. 2161 (1987) (union’s duty to provide

safe workplace derived solely from collective bargaining agree-

ment). Nor is this a case in which evaluation of Chrysler’s prima

facie liability will require determination of whether the collective

bargaining agreement has been breached. Cf. Lueck, 471 US.

202.

Chrysler may, in its own defense, assert that its treatment of

Smolarek was allowed or required by the terms of the collective

bargaining agreement and therefore was not based on Smolarek’s

handicap. The assertion of a defense requiring application of

federal law, however, does not support removal to federal court:

It is true that when a defense to a state claim is based on

the terms of a collective-bargaining agreement, the state

court will have to interpret that agreement to decide whether

the state claim survives. But the presence of a federal

question, even a § 301 question, in a defensive argument does

not overcome the paramount policies embodied in the well-

pleaded complaint rule — that the plaintiff is the master of

the complaint, that a federal question must appear on the

face of the complaint, and that the plaintiff may, by eschew-

ing claims based on federal law, choose to have the cause

heard in state court.

39a

Appendix C

Smolarek, et al. v. Chrysler Corp. Nos. 86-2074/87-1387

Caterpillar, 107 S. Ct. at 2433 (emphasis added).

We find that Smolarek’s complaint pleaded a cause of action

based solely on Michigan’s HCRA, a statute that Lingle suggests

has not been completely preempted by § 301. Accordingly, we

conclude that the district court erred in denying Smolarek’s

motion for remand to state court. As the Supreme Court noted in

Caterpillar, although the state court may need to determine

whether § 301 preempts Smolarek’s claim in light of Chrysler’s

defense based on the collective bargaining agreement, this court

need not consider that issue.? Jd. at 2433 n.13. It is sufficient that

we find that Smolarek’s well-pleaded complaint did not arise

under federal law or under the collective bargaining agreement.

(2) Fleming’s HCRKA Claim

In contrast to Smolarek’s appeal from an order denying

remand, Fleming appeals directly from the district court’s deci-

sion finding § 301 preemption of Fleming’s HCRA and retaliatory

discharge claims. Therefore, we must consider the preemption

issue, whether raised in Fleming’s complaint or by Chrysler’s

defenses.

Fleming asserted in his complaint that Chrysler violated

HCRA by failing to provide him with work consistent with his

medical restrictions and by effectually terminating him because of

his handicap. To establish prima facie liability under the Act, he

must demonstrate (1) that Chrysler took adverse employment

actions against him and (2) that the actions were motivated by

his handicap. As inLingle, these are “purely factual questions”

relating to the conduct and motivation of the employer. “Neither

of the elements requires a court to interpret any term of a

collective-bargaining agreement.” 108 S. Ct. at 1882.

2 Our conclusion that Fleming’s HCRA claim is not preempted by § 301,

infra, however, suggests, but does not compel, the conclusion that a state court

considering the issue in Smolarek’s case might reach.

40a

Appendix C

Smolarek, et al. v. Chrysler Corp. Nos. 86-2074/87- 1387

To defend against the HCRA charge, Chrysler must show

that its actions were motivated by some factor other than Flem-

ing’s handicap. We recognize that Chrysler is likely to assert as its

defense to Fleming’s claim that it based its actions on the

provisions of the labor agreement regarding reinstatement and

accommodation. Even this defense, however, does not require a

finding of preemption. In order to resolve the HCRA claim in

light of this defense, a court need only decide whether Chrysler

took actions adverse to Smolarek because of his handicap or

solely because Chrysler felt bound by the union agreement to take

the actions. It is not necessary to decide whether or not Chrysler’s

interpretation of the agreement is correct as a matter of federal

labor law. The question is a factual one: What was Chrysler’s

motivation? Under Lingle, therefore, Fleming’s HCRA claim is

sufficiently “independent” of the collective bargaining agreement

to escape § 301 preemption, for “resolution of the state-law claim

does not require construing the collective-bargaining agreement.”

108 S. Ct. at 1882 (emphasis added) (footnote omitted). Ac-

cordingly, we conclude under our understanding of Lingle that the

district court erred in finding Fleming’s HCRA claim preempted

by § 301.3

In sum, we hold that because resolution of neither Fleming’s

retaliatory discharge claim nor his handicap discrimination claim

would necessitate interpretation of a collective bargaining agree-

3This conclusion is not inconsistent with our decision in Maynard v. Revere

Copper Products, Inc., 773 F.2d 733 (6th Cir. 1985). There we found that an

employee’s claim for damages against his union for breach of the union’s duty of

fair representation, brought pursuant to a provision of Michigan’s HCRA, was

preempted by § 301. The holding in Maynard was based on the fact that the

HCRA fair representation provision “created no new rights for an employee and

imposed no duty on a union not already clearly present under existing federal

labor law.” Jd. at 735. Unlike the fair representation duty considered in

Maynard, however, the duty not to discriminate based on handicap is not a duty

already existing in the federal labor law. Therefore, the concerns regarding

interpretative consistency that Maynard raised are not present in the instant

appeal.

heh CT RS

4la

Appendix C

Smolarek, et al. v. Chrysler Corp. Nos. 86-2074/87- 1387

ment, those claims are not preempted by § 301. The judgment of

the district court in Fleming’s case is accordingly REVERSED,

and the matter REMANDED for further proceedings. We further

find that because Smolarek’s complaint asserted solely a violation

of Michigan’s HCRA and presented no question of federal law,

removal to federal court was improper in this case, and the district

court erred in denying Smolarek’s motion to remand. The order of

the district court denying remand is REVERSED, and the case is

ordered REMANDED to Michigan state court.

42a

Appendix D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN is

SOUTHERN DIVISION

STANLEY SMOLAREK

Plaintiff Civil Action

No. 86-71763

= HON. JULIAN ABELE

CHRYSLER CORPORATION, COOK, JR.

Defendant

ORDER

The Plaintiff, Stanley Smolarek (“Smolarek”’), filed a two

count Complaint against the Defendant, Chrysler Corporation.

(“Chrysler”), in a state court. Count I alleged a violation of

Michigan’s Handicappers’ Civil Rights Act. 37 MCLA § 37.101

et seq. Count II alleged a violation of Michigan’s public policy

against the retaliatory firing of Smolarek for his earlier filing of a

worker’s compensation claim against Chrysler. Both counts arose

out of Chrysler’s alleged refusal to return Smolarek to work after

he had suffered a seizure on the job.

Chrysler removed the matter from the state court, claiming

that this Court has original jurisdiction pursuant to 29 U.S.C.

§ 185 and 28 U.S.C. §§ 1331 and 1337. Thus, according to

Chrysler, removal was proper under 28 U.S.C § 1441(b).

Smolarek disagrees with Chrysler and now seeks a remand of

the matter to state court. Smolarek contends that his case will not

involve an application or interpretation of the collective bargain-

ing agreement since he does not seek to enforce any nght that

may arise under that contract. As a result, he argues that his state

actions are not preempted by the National Labor Relations Act,

29 U.S.C. § 151.

43a

Appendix D

In response, Chrysler contends that Smolarek’s rights to

reinstatement from disability are derived exclusively from his

collective bargaining agreement, and as such, his claims are

preempted by § 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185. Thus, Chrysler asserts that any

other conclusion would allow Smolarek to undermine federal

labor policy by purposefully failing to plead a necessary federal

question.

The question presented for consideration by this Court is

whether Smolarek’s causes of action are preempted by § 301 of

the LMRA. The seminal case on this question is Allis-Chalmers

v. Lueck, 105 S.Ct. 1904 (1985). According to Lueck, “not every

dispute concerning employment, or tangentially involving a provi-

sion of a collective-bargaining agreement, is preempted by § 301

or other provisions of the federal labor law.” Jd. at 1911. Instead,

the preemptive effect of § 301 extends only to “questions relating

to what the parties to a labor agreement agreed, and what legal

consequences were intended to flow from breaches of that agree-

ment.” 105 S.Ct. at 1911. “Therefore, state-law rights and obliga-

tions that do not exist independently of private agreements, and

that as a result can be waived or altered by agreement of private

parties, are preempted by those agreements.” Jd. at 1912. Con-

versely, state-law rights and obligations that are independent of

the labor contract, and, therefore, proscribe non-negotiable con-

duct or establish non-negotiable rights or obligations are not pre-

empted by § 301. Consequently, under Lueck, the question be-

comes whether the state law rights and obligations, which have

been asserted by Smolarek, are non-negotiable state law rights

and obligations that are inextricably intertwined with considera-

tion of the terms of the labor contract. See id. at 1912.

Chrysler believes that Smolarek’s cases of action are inextri-

cably intertwined with his labor contact. In support of its position,

Chrysler contends that this case is analogous to several other

cases. For example, Chrysler believes that the instant case is

analogous to Maynard v. Revere Copper Products, Inc., 773 F.2d

44a

- Appendix D

733 (6th Cir. 1985). In Maynard, the Sixth Circuit Court of

Appeals held that a claim of unfair representation against a union

and an employer under § 37.1204(d) of Michigan’s Handicap-

pers’ Civil Rights Act was preempted by § 301 because “[t}he

duty of fair representation is a federally created statutory duty and

federal law ‘governs’ a cause of action for breach of that duty.”

Maynard, 773 F.2d at 735. However, Smolarek has not alleged a

breach of the duty of fair representation. Hence, Maynard is not

analogous.

Chrysler also believes that Butynski v. General Motors Cor-

poration, No. 85-60454-AA (E.D. Mich. March 12, 1986); Cole

v..General Motors Corporation, et al, No. G83-408CA (W.D.

Mich. October 22, 1984); Curry v. General Motors Corporation,

No. 85-C1938 (E.D. Ill. October 11, 1985); Jasmund v. Chrysler

Corporation, et al, No. 85-CB-73586-DT (E.D. Mich. November

7, 1985); and Fleming v. Chrysler Corporation, et al, No. 85-CV-

73803-DT (E.D. Mich. October 7, 1985) are also analagous.

The “well pleaded complaint rule” instructs this Court that

Smolark is the master of his complaint and, therefore, he usually

determines the law upon which he relies in advancing his causes

of action. Franchise Tax Board v. Construction Laborers Vacation

Trust, US. _, 103 S.Ct. 2841, 2853 (1983). The

“artful pleading rule,” however, precludes Smolarek from avoid-

ing removal to this Court by inadvertently, mistakenly, or fraudu-

lently failing to plead a federal question. Schaeffer v. General

Motors Corp., 586 F. Supp. 870, 872 (E.D. Mich. 1984). Since

the “artful pleading” rule is a necessary collorary of the “well

pleaded complaint rule,” Franchise Tax Board, US.

, 103 S.Ct. at 2853, this Court must determine whether a

federal question would necessarily have appeared if Smolarek’s”

complaint had been well pleaded. Without expressing any com-

ment on the analogous nature of Chrysler’s persuasive authority,

this Court believes that Smolarek’s causes of action are pre-

empted by § 301.

4Sa

Appendix D

In pertinent part, Smolarek asks this Court to impose the

following restrictions and obligations upon Chrysler on the basis

of the Michigan Handicappers’ Civil Rights Act:

a) refrain from discriminating against an individual with

respect to compensation or the terms, conditions, or privi-

leges of employment, because of a handicap that is unrelated

to the individual’s ability to perform the duties of a particular

job or position;

b) refrain from limiting, segregating, or classifying an em-

ployee in a way which deprives or tends to deprive an

individual of employment opportunities or otherwise ad-

versely effect the status of an employee because of a handi-

cap that is unrelated to the individual’s ability to perform the

duties of a particular job or position;

¢) refrain from taking discriminatory action against an indi-

vidual on the basis of physical examinations that are not

directly related to the requirements of the specific jobs;

d) accommodate plaintiff's handicap by providing him with

work which would fit his particular needs or handicap and

otherwise accommodate plaintiff so that he can remain in the

active employ of defendant.

Smolarek’s Complaint also made the following request on the

basis of the Michigan Worker’s Disability Compensation Act:

(a) to [preclude Chrysler] from discriminating or otherwise

retaliating against its employees in general and plaintiff in

particular in anticipation of such employee making a claim

against defendant. . .

Obviously, those duties are based upon the labor contract because

they are derived from rights and obligations established by the

contract. For example, they depend upon Smolarek’s terms,

conditions, and privileges of employment that are addressed in the

labor contract. They depend upon employment classifications,

limitations, and segregations that are covered by the collective

46a

Appendix D

bargaining agreement. They depend upon physical examinations

and availability of employment, both of which are dependent

upon the collective bargaining agreement. They depend upon the

validity of Chrysler’s rationale for considering Smolarek unem-

ployable, which also is a right that was established by the

collective bargaining agreement.

Because the rights and duties which have been asserted by

Smolarek are derived from his collective bargaining contract, any

disposition of his causes of action will necessarily involve an

interpretation of the labor contract. Consequently, Smolarek’s

claims are “inextricably intertwined” with that contract. Lueck,

105 S.Ct. at 1912. This Court, therefore, holds that § 301 of the

LMRA preempts Smolarek’s causes of action. Accordingly, Smo-

larek’s Motion to Remand is denied.

IT IS SO ORDERED.

(s) JULIAN ABELE COOK, JR.

United States District Judge

Dated: September ???

Detroit, Michigan

poe Oa

47a

Appendix D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STANLEY SMOLAREK

Plaintiff, C.A. No. 86CV71763DT

V. Honorable Julian Abele

CHRYSLER CORPORATION, Couk, 5.

Defendant.

ORDER OF DISMISSAL WITH PREJUDICE

At a session of said Court, held in the Federal Building,

Detroit, Michigan

ON: October 24, 1986

PRESENT: HONORABLE JULIAN ABELE

COOK, JR.

United States District Judge

Upon the reading and filing of the attached stipulation, and

the Court being fully advised in the premises,

IT IS ORDERED that Stanley Smolark’s action against

Chrysler Motors Corporation f/k/a Chrysler Corporation is

hereby dismissed with prejudice and without costs or attorney fees

because Plaintiff did not exhaust his internal union appeals.

(s) JULIAN ABELE COOK, JR.

United States District Judge

48a

Appendix E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RALPH FLEMING,

Plaintiff,

¥.

CASE NO.

CHRYSLER CORPORATION, a 85-CV-73803-DT

Delaware corporation HON. BARBARA K.

Louis EpALpi and LYNDON HACKETT

VERLYNDON, Jointly and

Severally, -

~- Defendants.

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This matter is presently before the court on defendant’s

motion for summary judgment on the remaining counts in plain-

tiffs complaint. For the reasons set forth below, defendant’s

motion is granted.

FACTS

Plaintiff was hired by defendant Chrysler Corporation

(“Chrysler”) in September, 1976. He worked as a painter/glazer

at Chrysler until he was laid off on October 19, 1984. Throughout

his employment at Chrysler, plaintiff was a member of the

International Union, UAW. Defendants Louis Ebaldi and Lyn-

don Verlyndon were plaintiff's supervisors.

Plaintiff has asserted that he was afflicted with a physical

condition that precluded him from performing his assigned duties.

He therefore asked that Chrysler make certain provisions for his

49a

Appendix E

physical limitations. Appparently he had been involved on August

31, 1984, in an automobile accident, as a result of which he

suffered repeated episodes of vomiting that lasted from two to

seven days. He asked UAW officials to discuss with Chrysler the

possibility of placing work restrictions on plaintiff's assignments.

On October 19, 1984, plaintiff was placed on indefinite layoff

in a reduction in force at Chrysler’s Detroit Forge Plant. Plaintiff

characterizes his indefinite layoff as a discharge. Defendant main-

tains, however, that plaintiff retained all of his recall rights under

Chrysler’s collective bargaining agreement (“CBA”) with the

UAW, until he signed a release and waiver of seniority on May

15, 1986, pursuant to a settlement of a workers’ compensation

claim he filed on February 21, 1986.

On July 29, 1985, plaintiff filed the instant lawsuit, alleging

that his indefinite layoff and Chrysler’s failure to make provisions

for his physical condition constituted handicap discrimination,

retaliatory discharge, breach of an implied duty of good faith and

fair dealing, and intentional interference with his pursuit of his

occupation.

Plaintiff initially took his dispute with Chrysler to the UAW,

which filed a grievance on his behalf asserting that his layoff was

improper. This grievance was processed through the first three

steps of the grievance procedure and was pending at the fourth

step when plaintiff voluntarily quit his employment. Plaintiff

instituted the present action without having exhausted all avail-

able union grievance procedures. Chrysler removed plaintiff's suit

to this court, alleging that at least some, if not all, of plaintiff's

claims constitute claims under § 301 of the Labor Management

Relations Act (“LMRA”). Plaintiff's subsequent motion to re-

mand to state court was denied in an order issued by Judge

LaPlata on October 5, 1985. Judge LaPlata ruled at that time that

plaintiff's claims of breach of an implied duty of good faith and

interference with pursuit of his occupation arise under § 301.

50a

Appendix E

DISCUSSION

This court has previously applied the artful pleading rule in

similar actions. In Butynski v. General Motors Corporation, No.

85-CV-60454-AA (E.D. Mich., March 12, 1986, Joiner, J.) the

plaintiff alleged that her complaint referred only to the Michigan

Handicappers Civil Rights Act and not to any provision of federal

law. She argued that removal was therefore improper. The court

disagreed. It held that since plaintiff had raised issues of job

assignment and seniority in her complaint - subjects covered by

the collective bargaining agreement - plaintiffs suit fell under

§ 301 of the LMRA. The court refused to allow “artful pleading”

to prevent removal of a claim properly covered by the labor

statute.

In the present case, although plaintiff fails to refer in his

complaint to the CBA between Chrysler and the UAW, the

complaint is replete with references to issues covered by the CBA.

To the extent that a subject is governed by the CBA, the CBA

must necessarily preempt state law, in order to achieve the intent

of the LMRA to achieve uniform interpretation of collective

bargaining agreements. Allis-Chalmers Corporation v Lueck, 105

S.Ct. 1904 (1985).

Recent opinions of the Court of Appeals for the Sixth Circuit

confirm prior decisions in this District. In Stephens v. Norfolk &

Western R. Co., 792 F.2d 576 (6th Cir. 1986), the Court of

Appeals invoked the following test to determine whether a rail-

road employee, who had been disqualified from work following

diagnosis of degenerative disease in his

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