Petition for Writ of Certiorari — Reece v. Houston Lighting & Power Co.

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56 52 Wi 91996

No. QSDEBCE OF Tht CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

RAYMOND REECE,

Petitioner,

Vv.

HOUSTON LIGHTING & POWER COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PAUL ALAN LEVY

(Counsel of Record)

ALAN B. MORRISON

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, D.C. 20009

(202) 588-1000

MICHAEL SCOTT THOMAS

Suite 180

2646 South Loop West

Houston, Texas 77054

(713) 665-8558

Attorneys for Petitioner

July 9, 1996

QUESTION PRESENTED

Are an employee’s claims of racial discrimination under

state statutes and common law completely preempted by

section 301 of the Labor Management Relations Act, and

thereby automatically subject to removal to federal court,

whenever the employer asserts that its conduct was permitted

by an applicable collective bargaining agreement?

All parties to the proceeding below are listed in

the caption.

iil

TABLE OF CONTENTS

are ee ee ee i

EE I oe 6 a a WS Ae eC FOS aE iv

A eS a a oe 2

ASO ae oe a ee 2

a Cae oy Sieg be Woe oe, 6 an Dee 2

ela a elie a gk ke as 5 os a a ee ee 2

Soy eo ee 4

REASONS FOR GRANTING THE WRIT ......... 8

THE DECISION BELOW CONFLICTS WITH

SEVERAL DECISIONS OF THIS COURT AND

OTHER STATE AND FEDERAL COURTS,

AND PRESENTS AN IMPORTANT QUESTION

OF FEDERAL LAW ABOUT WHETHER

EMPLOYMENT DISCRIMINATION

COMPLAINTS UNDER STATE LAW ARE

AUTOMATICALLY PREEMPTED, AND

HENCE REMOVABLE, WHEN THE

EMPLOYER DEFENDS ON THE GROUND

THAT IT COMPLIED WITH A COLLECTIVE

BARGAINING AGREEMENT. ..........-.-.- 8

NS SEP eae a is ne Se 24

ia i it

TABLE OF AUTHORITIES

Cases: Page

Allis-Chalmers Corp. v. Lueck,

Ort as Oe PD oe eee ee eS 9, 12, 16, 19

Avco Corp. v. Machinists,

SOE Nites PT ow aa a ee ee 7

Carrington v. RCA Global Communications,

For be Gar U.N. SP) ee ke we 14

Caterpillar v. Williams,

an U0. are Clee). 6a ese ee 20, 21, 22, 23

Commodore v. University Mech. Contr.,

120 Wash. 2d 120, 839 P.2d 314 (1992)... 15, 18

Conrail v. RLEA,

i Ua: Cee eee. els cer ee eee 11

Cook v. Lindsay Olive Growers,

Ti) Fe ee Lee eee os ea Ses 14

Davis v. Johnson Controls,

na oe ee Ce as | eek wee a ee 13

Galvez v. Kuhn,

O33 F206 7a toe Ge bees oa ee el ies 18, 20

Glass Molders v. Wickes Cos.,

Tt Pe TT es, LO ls oe de ee 23

Hanks v. General Motors,

S06 Fat Sek Coma: TG ka eee’ 17

Hatridge v. Day & Zimmerman,

789 S.W.2d 654

(TOk,. Fi.~ TORINO TFP0).. i ees 14

Hawaiian Airlines v. Norris,

Rae x sk OR ok ere as Oe oe es passim

Hirras v. National RR Passenger Corp..,

48 F.3d 278, 283-284 (Sth Cir. 1995) ....... 18

Humphrey v. Sequentia,

sew Berg: fk ae...) ree 23

IBEW v. Hechler,

ek Oe ee MOOD i os Rie ee eee 0)

Jackson v. Kimel,

3S ope F. te gh, | ern eee 18

Jackson v. Southern California Gas Co..,

881 F.2d 638 (9th Cir. 1989) .......... 17, 18

Jimeno v. Mobil Oil Corp.,

SG FP .20 See CO Ne 8 ae Res 13

Johnson v. Beatrice Foods Co.,

921 F.26 1015 (ie Cer. 1990)... cc ce oe 17

Keehr v. Consolidated Freightways,

he me Be 2 & A) 7 I eres 17

Knox v. Wheeling-Pittsburgh Steel Corp.,

899 F. Supp. 1529 (N.D.W.Va. 1995) ....... 15

Kohl’s Food Stores v. Hyland,

3a F350 167s C7 OM. TRS a ee ee eke 14

Lightning v. Roadway Express,

OD Pe Asok CLI Ce: 198) age e ee eee 17

Lingle v. Norge,

MD Eis FOP LUPO oso be poke eae eee passim

Lingle v. Norge,

823 F.2d 1031 (7th Cir. 1987),

fev G,; Gap G8. SAR ks rn ek ee 15

Livadas v. Bradshaw,

114 3S. Ct. 2068 €1904).. .. . we +s i, be. te ae

Machinists Local 967 v. General Elec. Co..,

713 FP. Sapp. 547 (N.D.N.Y. 1969).........: 23

Martin Marietta Corp. v. Maryland Comm.

on Human Relations,

38 F356 1992 (OR Ce. PP as i 13

McCall v. Chesapeake & Ohio Ry. Co.,

844 F.2d 294 (6th Cir. 1988) .......... 13, 15

McCormick v. AT&T Technologies,

754 F.2G Jar CO, T9e k ve ee 16

Medrano v. Excel Corp.,

96S 26 230 (oe UE. 199s) oe ee > ae ae

Medtronic, Inc. v. Lohr,

No. 95-754 (June 26, 1996) ........... 16, 17

Miller v. AT&T Network Systems,

350 F.20 343 Oth Cir. 1966)... ee ts 13, 18

Miller v. Fairchild Industries,

668 F. Supp. 461 (D. Mid. 1967) ......3.84% 23

Se ee

Vil

Milne Employee’s Ass’n v. Sun Carriers,

960 F.2d 1401 (9th Cir. 1991) ............ 17

Mock v. T.G.&Y. Stores,

711 ©.a0 aan (em Ce, 1992)... one ie 17

Nash v. AT&T Nassau Metals,

POL D.0 we Cee CBAC ISO. ok kl as wa 19

O’Brien v. Conrail,

ie we SB oe we. 4 a ‘3, §5

Oklahoma Tax Commission v. Graham,

we Fo) 20, 21, 22. 23

Pikop v. Burlington Northern R. Co..,

390 N.W.2d 743 (Minn. 1986)............ 18

Plumbers Local 57 v. Bechtel Power Corp.,

834 F.2d 884 (10th Cir. 1987) ............ 21

Quesnel v. Prudential Ins. Co..,

OP a bil a AD. Ee 13

Ramirez v. Fox Television Station,

998 F.2d 743 (9th Cir. 1993) ......... 7, 13, 14

Rasheed v. International Paper Co. .,

826 F. Supp. 1377 (S.D. Ala. 1993) ........ 17

Smolarek v. Chrysler Corp..,

879 F.2d 1326 (6th Cir. 1989) ......... 13, 23

Stikes v. Chevron USA,

914 F.2d 1265 (9th Cir. 1990) ............ 23

Vill

Taggart v. TWA,

a ioe wee Ce. BOE Sc ct eh cae 13

Teamsters Local 174 v. Lucas Flour Co..

er aes ee Ce eS se eg Oe es ts ee )

Tisdale v. Plumbers Local 704,

fo BR Me wt i Ff ae ah. ) ee 23

Welch v. General Motors Corp.,

ee or Be ee 8 aay, ||) a nee 23

STATUTES

eee Rails; RD © 65k ee a ee ee 2

Bs PTD. Gs a le ees ea 15

Civil Rights Act of 1964,

RS Ge eet ht Pn es Sey 4

Labor Management Relations Act,

29 U.S.C. §§ 151 et seq.

CE Usk, OP Wes RD fee eee eee passim

Railway Labor Act,

ae SPs ee, SR sa kee Sc a ee 9, 11

Texas Labor Code,

et Les ir er ra ope We AD ee we 4

tee ce ee Te a 2 2

No. 95-

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

RAYMOND REECE,

Petitioner,

HOUSTON LIGHTING & POWER COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Raymond Reece petitions the Court to grant a writ of

certiorari to the United States Court of Appeals for the Fifth

Circuit to review that court’s judgment in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 79

F.3d 485, and appears in the Appendix to this Petition at la-

Sa (App. la-5a). The district court’s memoranda and orders

denying petitioner’s motion to remand this case to the state

court from which it had been removed, and then denying a

motion for reconsideration of that order, are printed at App.

6a and 7a-10a. The district court’s order granting summary

judgment to respondent appears at App. 12a-18a. The

district court’s memoranda and orders are not reported.

laa,

JURISDICTION

The judgment of the court of appeals was entered on

April 10, 1996. App. la-Sa. This Court has jurisdiction to

review that judgment under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

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

29 U.S.C. § 185(a), provides as follows:

Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this Act, or between any such labor

organizations, may be brought in any district court

of the United States having jurisdiction of the

parties, without regard to the amount in

controversy or without regard to the citizenship of

the parties.

Section 21.051 of the Texas Labor Code provides as

follows, in pertinent part:

[A]n employer commits an unlawful employment

practice if because of race . . . the employer (1)

discriminates in any cther manner against an

individual in connection with compensation or the

terms, conditions or privileges of employment or

(2) limits . . . an employee or applicant for

employment in a manner that would deprive or

tend to deprive an individual of any employment

opportunity.

STATEMENT

A. Facts.

Petitioner Raymond Reece, who is black, has been an

electrician for respondent Houston Lighting and Power

Company since 1974; he currently holds the position of head

cable splicer. Several times he sought promotions to the

position of crew leader and access to company classes that

other head cable splicers were taking in order to enhance

their skills and improve their chances for promotion. He

was denied such opportunities, and noticed that respondent

consistently gave them to white employees with less seniority

than he. For example, during 1994 and 1995, 19 white

employees in respondent’s underground cable department

received fiber optic training; no black employees received

such training. At the same time, eighteen white employees,

but no black employees, took classes on troubleshooting.

And eight white, and no black, employees hold positions as

crew leaders.

Respondent’s production and maintenance employees

are represented in collective bargaining by Local 66 of the

International Brotherhood of Electrical Workers, and work

under a collective bargaining agreement (“CBA”) between

Local 66 and respondent. Under the CBA, promotions for

most employees are governed by seniority, so long as ability,

skill and qualifications are equal. However, selection,

promotion and assignment of head journeymen (of which

head cable splicers such as petitioner are one kind), are

within respondent’s “sole discretion”; the CBA allows

respondent to consider not only ability, skill, qualifications,

performance, seniority, attendance and coaduct, but any

other matter. Similarly, the CBA reserves to respondent sole

discretion to promote to positions not covered by the CBA,

such as crew leaders.

B. Proceedings Below.

On April 18, 1994, petitioner filed charges with the

Equal Employment Opportunity Commission and the Texas

Commission on Human Rights (“TCHR”), alleging that he

had been denied both promotions and training opportunities

because of his race and because he had previously filed a

lawsuit against respondent charging race discrimination.

While the agencies investigated these allegations, respondent

continued to deny petitioner’s request to attend classes held

later that same year. Accordingly, after the TCHR issued a

right to sue letter, petitioner filed suit on March 9, 1995, in

the 215th Judicial District Court of Harris County, Texas,

alleging that respondent had both discriminated against him

on the basis of race, and retaliated against him for having

filed his 1994 discrimination charge. Petitioner alleged both

that this conduct violated the Texas Labor Code, §§ 21.001

et seq., and that it was extreme and outrageous in violation

of state common law. Petitioner deliberately confined his

allegations to violations of state law, and pleaded no claim

under Title VII of the Civil Rights Act, under the CBA or

section 301 of the Labor Management Relations Act

(“LMRA”), or under any other federal law.

Nevertheless, on April 6, 1995, respondent removed the

case to the United States District Court for the Southern

District of Texas, Houston Division. Respondent pointed out

that the CBA spoke to the issue of promotions, and

authorized it to take seniority and a variety of other matters

into consideration. Thus, according to respondent, it would

ultimately be necessary to consult the CBA in order to decide

whether respondent had discriminated or retaliated against

petitioner, and this need to consult the CBA, in turn,

preempted petitioner’s claim and replaced his state law claim

with a federal claim under section 301 of the LMRA, over

which the federal courts had subject matter jurisdiction.

Petitioner moved to remand the case to state court,

pointing out that defenses based on federal law do not

ordinarily provide a basis for removal. Petitioner argued

that, although the “complete preemption” doctrine makes

section 301 preemption 4 partial exception to this general

rule, under this Court’s decision in Lingle v. Norge, 486

U.S. 399 (1988), a state law claim alleging retaliatory

discharge is not ordinarily preempted by the LMRA because

such claims typically do not require interpretation of a CBA;

rather, the question in such cases is a factual one: was the

employer’s discharge decision motivated by forbidden

animus, in which case the claim succeeds, or by some other

reason, in which case it fails. Nevertheless, by a one-

paragraph order, the district court ruled that petitioner's

claims “require interpretation of the [CBA] and are therefore

preempted by section 301 .. ..” App. 6a.

Petitioner moved for reconsideration, arguing that there

was no need to examine the CBA in order to determine

whether his race and retaliation claims were valid. He

acknowledged that, in a recent decision, Medrano v. Excel

Corp., 985 F.2d 230 (1993), the Fifth Circuit had held that

a State law retaliatory discharge claim was preempted

because it was predicated on an allegation that a provision in

the CBA unlawfully authorized retaliation for filing a

workers compensation claim. That case was distinguishable,

he contended, because the CBA here did not purport to

authorize racial discrimination in promotions. Moreover, he

noted that courts in several other circuits had expressly held

that state law claims of race or national origin discrimination

are not preempted by the LMRA. Furthermore, he argued,

even if the court might have to look at the CBA in the course

of deciding his case, that was not the same as having to

interpret the CBA, not to speak of making the CBA so

central to his claim as to cause it to be preempted.

The district court denied reconsideration of its finding

of complete preemption. It stated that the CBA “governs”

respondent’s “exclusive, discretionary right to select,

promote, demote, transfer or assign head cable splicers after

consideration” of various factors, and that, consequently,

even though the intentional infliction claim was based solely

on racial discrimination, the element of extreme and

outrageous conduct “implicates the[se] provisions of the

CBA.” /d. 9a. Accordingly, the Court stated, it would be

necessary to interpret the CBA in order to decide petitioner's

claim, and the claim was, therefore, preempted. Respondent

then moved for summary judgment, and the district court,

having already determined that the section 301 claim

preempted the state law claim, dismissed petitioner’s

complaint as thus recharacterized because petitioner had not

exhausted the grievance procedure under the CBA before

filing his suit.

The court of appeals affirmed in a brief decision. It

noted that, under Texas law, to establish his statutory

discrimination claims petitioner would follow a burden-

shifting scheme under which he could make out a prima facie

case by showing his protected status, adverse treatment, and

dissimilar treatment of non-protected employees; respondent

would then articulate a legitimate non-discriminatory reason

for its actions; and petitioner would then have the burden of

showing that the articulated reason was pretext. App. 2a-3a.

However, the court observed, Reece’s claim of

discrimination “turns on questions of promotion, seniority

and assignment to training programs, all of which are

provided for in the CBA.” Jd. 3a. Because respondent

would rely on the CBA to defend its conduct, the CBA

would, the court assumed, inevitably have to be interpreted,

and so this was a case where complete preemption resulted

from the fact that “the interpretation of the CBA is made

necessary by an employer defense.” /d. (internal quotation

marks and citation omitted).

Similarly, the court below concluded, petitioner’s

tortious discrimination claim required a showing of “extreme

and outrageous conduct.” The court opined, without any

explanation, “[iJn order to evaluate whether [respondent]’s

conduct was ‘outrageous,’ the conduct must be measured

against the CBA.” Jd. The court below acknowledged that

its decision conflicted with a line of cases in at least one

other circuit. Thus, the Ninth Circuit had held in Ramirez v.

Fox Television Station, 998 F.2d 743, 748 (1993), that no

claims under California’s employment discrimination statute

were preempted. Nonetheless, the Fifth Circuit adhered to

its position on the ground that it was “mandated” by Lingle.

Id. 4a.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW CONFLICTS WITH

SEVERAL DECISIONS OF THIS COURT AND OTHER

STATE AND FEDERAL COURTS, AND PRESENTS AN

IMPORTANT QUESTION OF FEDERAL LAW ABOUT

WHETHER EMPLOYMENT DISCRIMINATION

COMPLAINTS UNDER STATE LAW _ ARE

AUTOMATICALLY PREEMPTED, AND HENCE

REMOVABLE, WHEN THE EMPLOYER DEFENDS

ON THE GROUND THAT IT COMPLIED WITH A

COLLECTIVE BARGAINING AGREEMENT.

Review should be granted in this case for three reasons.

First, the Fifth Circuit’s analysis of section 301’s preemptive

scope is inconsistent with numerous decisions of this Court

holding that independent state law claims are not preempted.

Second, the decision below is squarely contrary to the

holdings of several other lower courts, and indeed the lower

courts continue to struggle to determine the extent to which

they may consult a CBA in the course of adjudicating an

employer’s defenses without thereby preempting the

employee’s independent state law claim. Third, removal to

federal court, on the ground that respondent’s defenses to

petitioner’s state law claims would require consideration of

the CBA and thus require preemption of petitioner’s claims,

is similarly contrary to decisions of this Court and of

numerous other federal courts. In order to understand how

far the lower court has strayed, it is necessary first to review

this Court’s rulings in the area.

1. This Court has held that all claims that seek to

enforce a collective bargaining agreement arise under section

301 of the LMRA, even if the plaintiff purports to bring the

ciaim under state law. Avco Corp. v. Machinists, 390 U.S.

ene

557 (1968); Teamsters Local 174 v. Lucas Flour Co., 369

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

202 (1985), the Court ruled that an employee cannot avoid

the preemptive effect of section 301 simply by using a tort

label to describe a claim that, in effect, seeks to enforce

duties created by a CBA.

But Allis-Chalmers also insisted that the mere fact that

an employer has entered into a CBA governing its

employees’ terms and conditions of employment does not

immunize the employer from claims seeking to enforce state

law rights that are independent of any right established by

contract. 471 U.S. at 212. Section 301 did not “give the

substantive provisions of private agreements the force of

federal law, ousting any inconsistent state regulation. Such

a rule of law would delegate to unions and unionized

employers the power to exempt themselves from whatever

state labor standards they disfavored.” Jd. Nor must the

State claim be completely unrelated to the CBA; it must only

be “sufficiently independent of the [CBA] to withstand the

pre-emptive force of § 301.” JBEW v. Hechler, 481 U.S.

851, 859 (1987).

Lingle v. Norge, 486 U.S. 399 (1988), made clear the

limits of the preemption doctrine enunciated in Allis-

Chalmers, by holding that an employee’s state law claim of

retaliatory discharge is not preempted by the LMRA. Accord

Hawaiian Airlines v. Norris, 114 S. Ct. 2239 (1994) (no

preemption under Railway Labor Act (“RLA”)). Some

lower courts had understood Allis-Chalmers to stand for the

proposition that any state law claim brought by a unionized

employee was necessarily dependent on the CBA if there

existed parallel rights in the CBA and a grievance procedure

for enforcing them. In Lingle, the employee claimed that she

had been fired for exercising her right to file a workers

compensation claim, and the Court held that the mere

existence of a CBA with an arbitration clause was not

sufficient to preclude the states from providing an

independent cause of action to employees who were

terminated for a reason deemed by the state to be contrary to

public policy. The Court held that state law tort claims are

preempted only to the extent that they are dependent on the

meaning of a CBA, and the fact that a CBA may contain a

clause that provides rights parallel to the state claim does not

make the state law claim “dependent” on the CBA. 486

U.S. at 408-410. | When the employee claims that the

discharge was based on the exercise of the right to file a

workers compensation claim, the Court ruled, there is no

need to inquire into the meaning of the CBA, because either

the employer proceeded with the alleged bad motive, in

which case the employee prevails, or it did not, in which

case the employee loses. The Court went on to observe that

it was possible for a state law claim to require some

reference to a CBA without being preempted:

[A]s a general proposition, a state-law claim may

depend for its resolution upon both the

interpretation of a CBA and a separate state-law

analysis that does not turn on the agreement. In

such a case, federal law would govern the

interpretation of the agreement, but the state law

analysis would not thereby be preempted.

486 U.S. at 413 n.12.

Similarly, in Hawaiian Airlines v. Norris, 114 S. &

2239 (1994), an aircraft mechanic claimed that he had been

fired for refusing to certify the safety of certain planes and

for reporting his safety concerns to the Federal Aviation

Administration; the airline claimed that he had properly been

discharged for violating a provision of the CBA requiring

mechanics to sign work records in connection with the work

they perform, and that his claims and its defenses could only

be pursued in arbitration under the RLA. This Court held

that the state law claims were not preempted, specifically

rejecting the employer’s contention, based on Conrail v.

RLEA, 491 U.S. 299 (1989), that a state law claim is

preempted when the employer’s action is “arguably justified”

by a provision in the CBA. /d. at 2250. As the Court

explained in Norris, the fact that a defense of arguable

justification under the CBA may serve to distinguish between

major and minor disputes under the RLA does not mean that

the same test determines “the threshold question whether the

dispute was subject to the RLA in the first place.” Jd. at

2251. And it would not be necessary to determine whether

the employer violated the CBA in order to resolve state law

retaliation claims, because those claims “require only the

purely factual inquiry into any retaliatory motive of the

employer.” Jd.

The same issue arose in Livadas v. Bradshaw, 114 S.

Ct. 2068 (1994), where the employer contended that state

law claims are necessarily preempted whenever an employer

could identify some way in which a provision in the CBA

could be relevant to the disposition of a state law claim. The

Court acknowledged that there was substantial dispute among

the lower courts about the application of the principles of

Lingle and Lueck, and that there might be some cases where

a genuine dispute could be implicated by state law claims

even if the claims did not derive from the CBA. The Court

found it unnecessary to decide whether it would be necessary

to preempt such claims, on the one hand, or whether other

means of accommodating the federal law interests could be

found short of complete preemption, id. at 2078 n.18,

because in Livadas there was no dispute about the CBA’s

meaning. “[W]hen the meaning of contract terms is not the

subject of dispute, the bare fact that a [CBA] will be

consulted in the course of state-law litigation plainly does not

require the claim to be extinguished.” Jd. at 2078.

Here, the employer did no more than point to a

provision in the CBA that gave it broad discretion over the

selection of persons to be promoted and over the allocation

of training opportunities. There was no dispute about the

meaning of these contract terms. And yet the court below

allowed respondent’s CBA-based defense to preempt

petitioner’s claim that the reason why he had been denied

promotions and training was racial discrimination forbidden

by state law. The conflict between the ruling of the Fifth

Circuit and the consistently contrary decisions of the Court

is the first reason why certiorari should be granted.

2. Second, as the court below readily acknowledged,

its approach to preemption of discrimination claims squarely

conflicts with other appellate decisions. Indeed, with respect

to class-based discrimination claims, the Fifth Circuit stands

virtually alone in its position that the mere need to examine

a CBA causes the state law claim to be preempted. The

Fifth Circuit so held in the case below, as it had previously

done in Medrano v. Excel Corp., 985 F.2d 230 (Sth Cir.

1993).

Every other court to consider the question in the

context of race or sex discrimination claims has found them

to be indistinguishable from retaliation cases like Lingle and

Norris’. As the court below acknowledged, App. 4a, the

Ninth Circuit takes a diametrically opposing position to the

Fifth Circuit, refusing to preempt state law discrimination

claims simply because the employer pointed to a CBA as a

possible justification for its actions. E.g., Ramirez v. Fox

Television Station, 998 F.2d 743, 749 (1993):

The [CBA] may be crystal clear . . . but Fox

nonetheless. may have ignored the [CBA] or

applied it to her in a discriminatory manner.

Thus, reference to or consideration of the terms of

a [CBA] is not the equivalent of interpreting the

meaning of the terms. If it were, all

discrimination actions brought by unionized

employees would be preempted because the

starting point for every case would have to be the

agreement. Although the line between reference

to and interpretation of an agreement may be

somewhat hazy, merely referring to an agreement

does not threaten the goal that prompted

' Some First Circuit cases suggest that that court may be closer

to the Fifth Circuit in its hospitality to section 301 preemption

claims. One enigmatic decision held that a state claim of discharge

to prevent an employee from obtaining commissions was

preempted because the CBA regulated the rates of pay, including

commissions, Quesnel v. Prudential Ins. Co., 66 F.3d 8 (Ast Cir.

1995), and another held that state law handicap discrimination

claims are preempted by section 301. O’Brien v. Conrail, 972

F.2d 1 (1992). The majority rule remains that handicap claims are

not preempted. E.g., Jimeno v. Mobil Oil Corp., 66 F.3d 1514

(9th Cir. 1995); Martin Marietta Corp. v. Maryland Comm. on

Human Relations, 38 F.3d 1392, 1398-1402 (4th Cir. 1994);

Smolarek v. Chrysler Corp., 879 F.2d 1326, 1334 (6th Cir. 1989):

Miller v. AT&T Network Systems, 850 F.2d 543, 548-550 (9th Cir.

1988). Compare Davis v. Johnson Controls, 21 F.3d 866, 868

(1994) (preempted), with Taggart v. TWA, 40 F.3d 269, 274-275

(8th Cir. 1994) (not preempted).

preemption — the desire for uniform interpretation

of labor comtract terms.

Accord Kohl’s Food Stores v. Hyland, 32 F.3d 1075, 1079

(7th Cir. 1994) (CBA may be consulted along with other

factors without interpreting its terms and thus preempting

state claim). The Ninth Circuit has repeatedly denied

employer attempts to use section 301 to preempt claims

under a variety of state anti-discrimination laws.”

Numerous district courts in other circuits have reached

the same conclusion.’ The issue often arises, as it did here,

in the context of a motion to remand a case that was removed

on grounds of complete preemption. Because such rulings

are nonappealable under 28 U.S.C. § 1447(c), they are the

final word in those districts. Moreover, appellate courts in

several states have refused to preempt state discrimination

claims simply because the employer claimed that the CBA

supported its position.* And several other courts of appeals,

> E.g., Cook v. Lindsay Olive Growers, 911 F.2d 233, 240

(9th Cir. 1990) (religious discrimination claim not preempted);

Jackson v. Southern California Gas Co., 881 F.2d 638, 644 (9th

Cir. 1989) (race discrimination claim not preempted).

> E.g., Knox v. Wheeling-Pittsburgh Steel Corp. , 899 F. Supp.

1529, 1534-1535 (N.D.W.Va. 1995) (state-law claim of sex

discrimination and sexual harassment not preempted); Carrington

v. RCA Global Communications, 762 F. Supp. 632, 639-642

(D.N.J. 1991).

* E.g., Commodore v. University Mech. Contr., 120 Wash.2d

120, 132-133, 839 P.2d 314, 320 (1992). See also Hatridge v.

Day & Zimmerman, 789 S.W.2d 654 (Tex. App. -- Texarkana

1990) (race discrimination claim not preempted; no mention of

defense based on CBA).

although not being presented with race or sex discrimination

claims. have stated that such claims would not be preempted.

because they present the factual question of motivation, not

the legal question of the meaning of the CBA.°

There is a good reason why most lower courts have

refused to allow preemption in cases like this one: if the

employer’s CBA-based defenses are sufficient to preempt the

discrimination claim here, they will always lead to

preemption of both discrimination and retaliation cases, thus

completely undercutting the anti-preemption holdings of

Lingle, Norris, and Livadas, and contrary to the presumption

giving the narrowest scope to any preemption of state law.

See Medtronic, Inc. v. Lohr, No. 95-754, at 12-13 (June 26,

1996). This case thus presents the question whether an

employer’s mere invocation of the CBA as presenting a

potential defense can serve to destroy a cause of action that

a state has chosen to promulgate to protect its citizens.

In this case, petitioner claims that his employer

withheld certain valuable job benefits from him because of

his race, pointing to evidence that these benefits were

routinely given to white employees and not to black

employees similarly situated. The employer responded, as

employers generally do, by contending that it had other,

legitimate reasons for according the benefits to others but not

petitioner. Whenever an employer has a CBA, the employer

will, of course, contend — as respondent did here — that the

CBA recognizes the legitimacy of the reasons it has given for

> O’Brien v. Conrail, 972 F.2d 1, 5-6 (1st Cir. 1992); McCall

v. Chesapeake & Ohio Ry. Co., 844 F.2d 294, 302 (6th Cir.

1988); Lingle v. Norge, 823 F.2d 1031, 1046 n.17 (7th Cir.

1987), rev’d on other grounds, 486 U.S. 399 (1988).

its benefit distribution decisions. Under the decision below,

the mere fact that the employer has asserted justifications

based on the CBA is sufficient first to warrant removal to

federal court, wresting the decisional power from the state’s

own courts, and then to extinguish the state’s anti-

discrimination policy, leaving the matter solely to the

disposition of the union and the employer through the

grievance procedure. Such a result is completely inconsistent

with this Court’s holdings in Lingle and its progeny. “It is,

to say the least, difficult to believe that Congress would,

without comment, remove all means of judicial recourse for

those injured by illegal conduct.” Medtronic, Inc. v. Lohr,

No. 95-754, at 15 (June 26, 1996) (plurality opinion).

The fact that petitioner has alleged his racial

discrimination claim in the form of the tort of intentional

infliction of emotional distress (“ITED”) in addition to his

claim under the Texas civil rights statute does not require the

preemption of the tort claim. The lower courts are divided

over the question whether IIED claims are preempted by

section 301, with a single circuit often displaying a startling

inconsistency of analysis. Not infrequently, a court will

simply conclude that, because liability for IIED depends on

a finding that the employer’s behavior was outrageous and

extreme, the entire circumstances of the workplace must be

examined, including the rights and obligations set forth in the

CBA, thus requiring that the state claim be preempted. E.g.,

McCormick v. AT&T Technologies, 934 F.2d 531 (4th Cir.

1993) (en banc). Such courts treat IIED claims as the

working conditions equivalent of the bad faith denial of

insurance benefits that this Court found preempted in Allis-

Chalmers; they can, therefore, reach a conclusion of

preemption, as the court below did, without a careful

consideration of the specifics of the claim or of the factual

context.° Other courts have been willing to give more

detailed treatment to the question of preemption, and find no

preemption when they decide that the employer’s alleged

conduct was so outrageous, or concerned matters so

extraneous to the specific CBA involved in the case, that

nothing in the CBA could possibly justify the conduct if the

allegations in the complaint are proved.’

° E.g., Mock v. T.G.&Y. Stores, 971 F.2d 522, 530 (10th Cir.

1992), quoting Johnson v. Beatrice Foods Co., 921 F.2d 1015,

1020-1021 (10th Cir. 1990). Paradoxically, the Ninth Circuit,

which sometimes gives case-specific consideration to the ability of

ITED claims to survive preemption, e.g., Galvez v. Kuhn, 933

F.2d 773, 779-780 (9th Cir. 1991), summarily determined in

Miller v. AT&T Network Systems, 850 F.2d 543 (9th Cir. 1988),

that an ITED claim that was litigated along with a non-preempted

handicap discrimination claim, id at 548-550, was nevertheless

preempted because the outrageousness of the I[ED claim could

(but might not) depend on whether the behavior violated the CBA.

Id. at 550-551. See also Jackson v. Southern California Gas Co.,

881 F.2d 638, 645-646 (9th Cir. 1989) (dismissing as preempted

an ITED claim based on the same conduct as a race discrimination

claim that was not preempted).

’ E.g., Lightning v. Roadway Express, 60 F.3d 1551 (11th Cir.

1995) (intense verbal abuse); Jackson v. Kimel, 992 F.2d 1318

(4th Cir. 1993) (alleged sexual harassment); Milne Employee's

Ass’n v. Sun Carriers, 960 F.2d 1401, 1412-1413 (9th Cir. 1991)

(IIED claim based on unfair termination preempted, ITED claim

based on false representations of job security not preempted);

Hanks v. General Motors, 906 F.2d 341 (8th Cir. 1990) (worker

required to work with foreman indicted for molesting her

daughter); Keehr v. Consolidated Freightways , 825 F.2d 133, 137-

138 (7th Cir. 1987) (worker alleged abusive and _ insulting

language); Rasheed v. International Paper Co., 826 F. Supp.

(continued...)

As may be seen from the cases cited in the footnotes,

a finding of no preemption is particularly likely where the

tort is, as here, predicated on mistreatment based on race or

gender. Indeed, in Hirras v. National RR Passenger Corp.,

48 F.3d 278, 283-284 (5th Cir. 1995), the Fifth Circuit

itself, on remand from this Court based on Norris, refused to

preempt an IIED claim based on sexual harassment. The

court below did not even mention Hirras, not to speak of

explaining why the CBA was irrelevant in that case but

central to this one.

We wish to emphasize that our point here is not that the

preemption question was necessarily decided wrongly in any

of the cases cited from other circuits. Rather, the reason

why these cases are all over the map — and why, in our

judgment, employment law practitioners and employers alike

find it very difficult to predict how the preemption issue will

be resolved — is that the lower courts do not understand just

how far Lingle’s non-preemption standard allows them to go

in looking at a CBA where the claim is based on substantive

state law.

This Court has, over the past few years, considered and

rejected numerous petitions for certiorari from both sides in

cases raising questions about how the Lingle standard should

7(...continued)

1377, 1386 (S.D. Ala. 1993) (racial discrimination). See also

Commodore v. University Mech. Contr., 120 Wash.2d 120, 135-

137, 839 P.2d 314, 321-322 (1992) (racial discrimination); Pikop

v. Burlington Northern R. Co., 390 N.W.2d 743, 748-753 (Minn.

1986) (sexual harassment and national origin discrimination). Cf.

Nash v. AT&T Nassau Metals, 381 S.E.2d 206, 209 (S.C. 1989)

(case by case evaluation of preemption required; claim at issue

preempted because claim is abuse of contractual privileges).

be applied. In Norris and Livadas, the Court extended the

Lingle standard to cases involving the railroad and airline

industries and to cases involving wage claims. The question

with which lower courts continue to grapple, however, is

what the Lingle standard means in practice — does an

otherwise non-preempted case become preempted as soon as

the employer raises a CBA-related defense to the state law

claim? The widespread disagreement shows that the lower

courts are struggling to apply the preemption rules

established by this Court in Allis-Chalmers and Lingle. See

Galvez v. Kuhn, 933 F.2d 773, 776 (9th Cir. 1991); Note,

The Need for a New Approach to Federal Preemption of

Union Members’ State Claims, 99 Yale L.J. 209, 209 (1989).

Both the lower courts and thousands of litigants need

the Court’s guidance on this question, and this case presents

the question very cleanly in the context of race discrimination

claims, whether presented as a statutory civil rights action or

as a tort claim of outrageous conduct. Moreover, the context

here shows that the decision below threatens to completely

eviscerate the Lingle standard. The Court should therefore

grant certiorari to resolve the conflict among the circuits over

the extent to which a CBA may be considered in a Lingle-

type case.

3. There is another reason why review by this Court

will be of great significance to the lower courts. Under the

analysis of the Fifth Circuit, the mere invocation of a CBA

entitles the employer to remove every state-law-based

employee claim to federal court, thereby substantially

increasing the workload of the federal courts and requiring

all CBA-based preemption claims to be decided there. This

approach is squarely contrary to this Court’s opinion

concerning removal of cases based on alleged preemption by

section 301 in Caterpillar v. Williams, 482 U.S. 386 (1987),

and to this Court’s analysis of Caterpillar in Oklahoma Tax

Commission v. Graham, 489 U.S. 838 (1989).

In Caterpillar, employees sued under state law to

enforce contracts which, they alleged, were formed by Cater-

pillar’s promises, made to them individually, that they would

not be laid off if the plant were closed. Although this Court

affirmed the holding that the case was improperly removed,

it unanimously rejected the Ninth Circuit’s reasoning. /d. at

391 n.4. The Court ruled that, even though a court must

determine whether a plaintiff's complaint, properly pleaded,

is based on federal or state law, the plaintiff may opt to

avoid federal jurisdiction by exclusive reliance on state law.

Id. at 392. Even the doctrine of complete preemption does

not rob a plaintiff of this right, so long as the state law claim

is not substantially dependent on a CBA. Thus, the Cater-

pillar plaintiffs asserted a breach of individual employment

contracts, and even if they could also have asserted claims

under the CBA, as masters of their complaint, they were free

not to do so. Jd. at 395. Because the complaint did not rely

on a CBA, or even address the relationship between the

individual contracts and the CBA, the claims did not arise

under section 301, and the case was not removable based on

the doctrine of complete preemption. /d. Even though

Caterpillar was also arguing for preemption on the theory

that the state law contract could not be enforced within the

bargaining unit because of NLRA law, and the contract had

to be construed in deciding the validity of that argument, that

was still not enough to warrant removal:

[T]he 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 . . . [A] defendant |

cannot, merely by injecting a federal question into |

an action that asserts what is plainly a state-law

claim, transform the action into one arising under

federal law, thereby selecting the forum in which

the claim shall be litigated.

482 U.S. at 398-399 (emphasis in original).

This analysis was reaffirmed when the Court explained

the significance of Caterpillar in Oklahoma Tax Commission,

another removal case, although one not involving a CBA:

In Caterpillar, we ruled that application of

the well-pleaded complaint rule defeated federal-

question jurisdiction, and therefore removability,

in a case in which the employees sued on personal

state employment contracts. We refused to

characterize these state-law claims as arising under

federal law even though an interpretation of the

collective-bargaining agreement might

ultimately provide the employer a complete

defense to the individual claims, and even

though employee claims on the collective-

bargaining agreement would have been the

subject of original federal jurisdiction.

489 U.S. at 841 (emphasis added).

Even before Oklahoma Tax Commission, the Tenth

Circuit had followed Caterpillar by barring removal of state

law claims based on the contention that they were waived in

a CBA.® The Sixth and Eighth Circuits have also held that

* Plumbers Local 57 v. Bechtel Power Corp., 834 F.2d 884,

889-890 (10th Cir. 1987).

the mere fact that, in addressing a defense based on an

interpretation of a CBA, the state court might ultimately hold

that a plaintiff's claim is preempted, does not warrant

removal of that claim to federal court.’ District court

decisions in other circuits have reached that conclusion as

well.'” The Ninth Circuit, by contrast, has held that neither

Caterpillar nor Oklahoma Tax Commission bars removal

based on the invocation of the CBA as a defense to state law

employment claims."

Because of the view of many courts that a case is

removable to federal court whenever section 301 may

preempt all or part of state law claims, a most undesirable

litigation dynamic is produced. Employers that have CBAs

have every incentive to remove to federal court on grounds

of section 301 preemption. They know that if they succeed

in removing the case, the necessary result is that the entire

case is preempted, and thus that they can defeat the state law

* Humphrey v. Sequentia, 58 F.3d 1238, 1244 (8th Cir. 1995);

Tisdale v. Plumbers Local 704, 25 F.3d 1308, 1313-1314 (1994);

Welch v. General Motors Corp., 922 F.2d 287, 291-292 (6th Cir.

1990); Smolarek v. Chrysler Corp. , 879 F.2d 1326, 1333-1334 and

n.3 (6th Cir. 1989) (en banc) (case remanded even though

interpretation of CBA might show absence of discriminatory

animus).

'” E.g., Miller v. Fairchild Industries, 668 F. Supp. 461, 467

(D. Md. 1987) (defendant claimed that supplemental CBA released

all claims in connection with plant closing); Machinists Local 967

v. General Elec. Co., 713 F. Supp. 547, 554-555 (N.D.N.Y.

1989); Glass Molders v. Wickes Cos., 707 F. Supp. 174, 178

(D.N.J. 1989).

'! Stikes v. Chevron USA, 914 F.2d 1265, 1268-1269 (9th Cir.

1990).

———EEE————

claim, without even having to get into the details of the case

and show that the CBA, as they contend it should be

construed, actually does provide a defense to the claim.

Frequently, too, the employee-plaintiff’s lawyer is a state

court practitioner who rarely appears in federal court, thus

adding to the employer’s litigation advantage. And even if

the case is remanded, it will be with the proviso that the state

courts remain free to decide the preemption defense in the

employer’s favor. Removal is thus a no-lose proposition,

and the result is that many more cases are imposed on the

federal dockets (and an employee-plaintiff’s litigation burdens

become all the greater) than there ought to be. The Court

should therefore grant certiorari in order to curtail this

growing imposition on the federal courts, and to resolve the

growing conflict among the lower courts about whether

removal is proper."

'2 We note that, in the lower courts, this case was litigated on

the assumption that the questions of preemption by section 301,

and federal jurisdiction warranting removal to federal court, were

one and the same. On this theory, all cases in which section 301

preempts state law are removable, and hence the only significant

question is whether there is, in fact, preemption. Petitioner did

not specifically discuss whether preemption through defensive use

of the CBA raises different issues of federal jurisdiction than does

the issue of whether there is preemption of a claim based on the

well-pleaded elements of the plaintiff's case.

However, because this issue goes to the question of subject

matter jurisdiction it may be raised at any time, and petitioner is

obligated to note the problem once found by his new Supreme

Court counsel. Moreover, as argued in the text, the basic

misconception on the issue of jurisdiction that was shared by the

parties and the courts below is widespread, and it has forced the

federal courts to take jurisdiction of numerous cases in which the

(continued...)

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

PAUL ALAN LEvy

(Counsel of Record)

ALAN B. MORRISON

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, D.C. 20009

(202) 588-1000

MICHAEL SCOTT THOMAS

Suite 180

2646 South Loop West

Houston, Texas 77054

(713) 665-8558

Attorneys for Petitioner

July 9, 1996

'2(_ continued)

preemption question should be resolved in the state courts if there

is an actual need to examine the CBA in litigation of the claims

and defenses that are being raised.

APPENDIX

Raymond REECE, Plaintiff-Appellant,

HOUSTON LIGHTING & POWER COMPANY,

Defendant-Appellee

No. 95-20646

United States Court of Appeals,

Fifth Circuit

April 10, 1996.

Michael S. Thomas, Thomas & Williams, Houston,

TX, for plaintiff-appellant.

L. Chapman Smith, Matthew Paul Eastus, Baker and

Botts, Houston, TX, for defendant-appellee.

Appeal from the United States District Court for the

Southern District of Texas.

Before BARKSDALE, DeMOSS and PARKER, Circuit

Judge.

ROBERT M. PARKER, Circuit Judge:

I. FACTS AND PROCEEDINGS BELOW

Reece is an employee of HL & P, subject to a collective

bargaining agreement (CBA) which contains a mandatory

grievance and arbitration procedure. Reece filed suit against

HL & P in state court, alleging that, on the basis of his race,

he was (1) denied promotions and training; (2) retaliated

against for engaging in a protected activity; and (3) subjected

to intentional infliction of emotional distress. Reece never

filed a grievance under the CBA, and the time for doing so

has run.

HL & P answered and removed the case to federal

court. The district court denied Reece’s motion to remand,

concluding that § 301 of the Labor Management Relations

Act (LMRA) preempted Reece’s causes of action. See 29

U.S.C. § 141, et seq. The district court then granted HL &

P’s motion for summary judgement, finding that Reece’s

claims were barred because of his failure to exhaust his

mandatory administrative remedies under the CBA.

Reece appeals only the remand issue.

II. ANALYSIS

At issue is whether the district court properly concluded

that § 301 of the LMRA preempted Reece’s claims.

Preemption is a question of law reviewed de novo. Baker v.

Farmers Elec. Coop., Inc., 34 F.3d 274, 278 (Sth Cir.

1994). If the resolution of Reece’s claims will require

“interpretation” of the CBA, then the state-law remedies

upon which Reece relies are preempted by § 301 of the

LMRA. Lingle v. Norge Div. of Magic Chef, Inc. , 486 U.S.

399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Thus, the

dispute is whether the CBA must be interpreted in resolving

Reece’s clams.

A. Discrimination Claim:

To establish a prima facie case of discrimination under

the Texas Labor Code, Reece would have to prove that he

(1) was a member of a protected class; (2) suffered an

adverse employment action; and (3) was treated dissimilarly

from non-protected employees. Farrington v. Sysco Food

Serv., Inc., 865 S.W.2d 247, 251 (Tex.App.-Houston [1st

Dist.] 1993, writ denied). If Reece were to establish a prima

facie case, HL & P would then have the burden of

articulating a legitimate, non-discriminatory reason for the

allegedly unequal treatment. /d. Then the burden would shift

back to Reece to prove that the articulated reason was a

pretext for unlawful discrimination. Jd.

Reece’s discrimination claim turns on questions of

promotion, seniority, and assignment to training programs,

all of which are provided for in the CBA. HL & P will

undoubtedly rely on the CBA as its legitimate, non-

discriminatory reason for Reece’s treatment. When Reece

then attempts to show that HL & P’s stated reason is

pretextual, the CBA would have to be interpreted because

Reece would have to challenge HL & P’s rights under the

CBA. Thus, the interpretation of the CBA “is made

necessary by an employer defense.” Rebecca Hanner White,

Preemption of State Law Claims: A Model for Analysis, 41

Ala.L.Rev. 377, 427 (1989).

B. Intentional Infliction of Emotional Distress Claim:

For Reece to sustain his claim of intentional infliction

of emotional distress under Texas law, he must prove (1) HL

& P acted intentionally or recklessly; (2) HL & P’s conduct

was extreme and outrageous; (3) such conduct caused

emotional distress; and (4) such distress was severe. Baker,

34 F.3d at 280. In order to evaluate whether HL & P’s

conduct was “outrageous,” the conduct must be measured

against the CBA.

Thus, the resolution of Reece’s claim will require

interpretation of the CBA. Therefore, the claims are pre-

empted by § 301 of the LMRA.

We acknowledge that the Ninth Circuit has taken a

much more lenient view of preemption of state law

discrimination claims. See, e.g., Ramirez v. Fox Television

Station, Inc., 998 F.2d 743, 748 (9th Cir. 1993) (“In every

case in which we have considered an action brought under

the California Employment Act, we have held that it is not

preempted by section 301.”) (collecting cases). Nevertheless,

we find that Lingle mandates our analysis.

This result is strengthened by the policies behind

preemption in this context. The Supreme Court has

recognized the unique need for uniformity in the

interpretation of labor contracts:

The possibility that. individual contract terms

might have different meanings under state and

federal law would inevitably exert a disruptive

influence upon both the negotiation and

administration of collective agreements. Because

neither party could be certain of the rights which

it had obtained or conceded, the process of

negotiating an agreement would be made

immeasurably more difficult by the necessity of

trying to formulate contract provisions in such a

way as to contain the same meaning under two or

more systems of law which might someday be

invoked in enforcing the contract. . . . The

ordering and adjusting of competing interests

through a process of free and voluntary collective

bargaining is the keystone of the federal scheme to

promote industrial peace. State law which

frustrates the effort of Congress to stimulate the

smooth functioning of that process thus strikes at

the very core of the federal labor policy.

Local 174, Teamsters v. Lucas Flour Co. , 369 U.S. 95, 103-

04, 82 S.Ct. 571, 577, 7 L.Ed.2d 593 (1962) (citations

omitted).

Reece argues that the right to be free of discrimination

is a non-negotiable state-law right that cannot be altered or

waived by agreement. Nevertheless, Lingle forecloses such

an argument: “It is conceivable that a State could create a

remedy that, although nonnegotiable, nonetheless turned on

an interpretation of a collective-bargaining agreement for its

application. Such a remedy would be pre-empted by § 301.”

Lingle, 486 U.S. at 407 n. 7, 108 S.Ct. at 1882 n. 7. The

situation described by the Lingle Court is the situation

presented in this case.

The district court’s denial of the motion to remand is

therefore AFFIRMED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

ENTERED

MAY 02 1995

Michael N. Milby Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE SQUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RAYMOND REECE,

Plaintiff | CIVIL ACTION NO.

H-95-1025

VS.

HOUSTON LIGHTING AND

POWER COMPANY,

Defendant

ORDER

Pending before the Court in the above referenced

action alleging denial of promotion and work assignments

in violation of state law is Plaintiff Raymond Reece’s

motion for remand (instrument #4). Because this Court

agrees that Plaintiff's claims require interpretation of the

collective bargaining agreement and are therefore preempted

by section 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185(a), the Court

ORDERS that the motion is DENIED.

SIGNED at Houston, Texas on this 30th day of April,

1995.

Melinda Harmon /sig/

MELINDA HARMON

UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

ENTERED

JUL 25 1995

Michael N. Milby Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RAYMOND REECE,

Plaintiff | CIVIL ACTION NO.

H-95-1025

VS.

HOUSTON LIGHTING AND

POWER COMPANY,

Defendant

ORDER

Pending before the Court in the above referenced

action alleging employment discrimination in promotion and

training based on race are, inter alia, Plaintiff Raymond

Reece’s motion to amend interlocutory order (instrument

#7), Plaintiff's motion for reconsideration of the Court’s

denial of his motion for remand (#8), Plaintiff's request for

oral hearing on his motion for reconsideration (#9), and

Plaintiff's unopposed motion to stay ruling on Defendant

Houston Lighting and Power’s motion for summary

judgment pending resolution of Plaintiff's motion for

reconsideration (#17). This action was removed on the basis

of complete preemption under § 301 of the Labor

Management Relations Act (““LMRA”), 29 U.S.C. §§ 185 ef

seq., because Plaintiff is a bargaining unit employee and

his claims require interpretation of the collective bargaining

arn

agreement (“CBA”). The Court denied Plaintiff's motion to

remand for the same reason on April 30, 1995.

Plaintiff requests amendment of the Court’s order

denying remand so that it can be immediately appealed.

Because the matter is one of established law in this Circuit

and because this Court finds no good reason for piecemeal

litigation and delay in the instant suit, it denies the motion

to amend its order.

Plaintiff moves the Court to reconsider its order

denying remand because he asserts that his state-law claims

for intentional infliction of emotional distress and race

discrimination do not require interpretation of provisions of

the CBA.

After reviewing the record and the applicable law, this

Court has not changed its mind that removal was proper

because of complete preemption by the LMRA. Plaintiff

complains that Defendant’s refusal to promote him to

foreman or to assign him to certain training classes alone

caused him emotional distress. Article XV, § 6 of the CBA

governs Defendant’s exclusive, discretionary right to select,

promote, demote, transfer or assign head cable splicers after

consideration by Defendant of “ability, skill, qualifications,

performance, seniority, attendance and conduct,” and with

a right to file a grievance reserved to Plaintiff. To sustain a

claim for emotional distress in Texas, a plaintiff must prove

that (1) the defendant acted intentionally or recklessly, (2)

that the defendant’s conduct was extreme and outrageous,

(3) that defendant’s conduct caused the plaintiff's emotional

distress, and (4) that tic emotional distress was severe.

Tidelands Automobile Club v. Walters, 699 S.W.2d 939, 942

(Tex. App.--Beaumont 1985, writ ref'd n.r.e.). Thus as the

alleged sole cause of his emotional distress, Defendant's

refusal to promote Plaintiff or assign his [sic] to requested

training must be extreme or outrageous to prevail on his

claim. Because the emotional distress claim is unavoidably

and inextricably intertwined with Defendant’s conduct in

failing to promote or assign Reece where Reece desired, the

essential element of extreme and outrageous conduct to

establish intentional infliction of emotional distress

implicates the provisions of the CBA that give Defendant

the right to promote and to assign training. Thus the state

law claim is preempted. Baker v. Farmers Elec. Coop., 34

F.3d 274 (Sth Cir. 1994); see also Hirras v. National R.R.

Passenger Corp., 44 F.3d 278, 283 (Sth Cir.1995) (“[I]f a

CBA [can] be interpreted to give an employer the right to

distress claim, an interpretation of the right granted by the

CBA is necessary to the resolution of that claim,” citing

Baker, 34 F.3d at 280). Because Plaintiff's claim involves

questions of promotability, seniority, and work assignments,

it is inextricably intertwined with terms of the CBA that

give Defendant the exclusive discretionary right to

determine which employees will be promoted or trained.

Medrano v. Excel Corp., 985 F.2d 230, 233 (Sth Cir.), cert.

denied, 114 S. Ct. 79 (1993).

For these reasons the Court

ORDERS that Plaintiff's motion to amend interlocutory

order and motion for reconsideration are DENIED. The

Court further

ORDERS that Plaintiff's request for oral hearing and

motion to stay ruling are MOOT.

SIGNED at Houston, Texas, this 24th day of July,

1995.

Melinda Harmon /sig/

MELINDA HARMON

UNITED STATES DISTRICT JUDGE

10a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

ENTERED

AUG 10 1995

Michael N. Milby Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RAYMOND REECE,

Plaintiff | CIVIL ACTION NO.

H-95-1025

VS.

HOUSTON LIGHTING AND

POWER COMPANY,

Defendant

MEMORANDUM AND ORDER

Pending before the Court in the above referenced

action alleging employment discrimination in promotion and

training based on race is Defendant Houston Lighting &

Power Company’s motion for summary judgment for failure

to exhaust administrative remedies (instrument #15).

This Court has previously held that the claims of

Plaintiff Raymond Reece, employed by Defendant as a head

cable splicer and subject to a collective bargaining

agreement (“CBA”), are preempted by the Labor

Management Relations Act (“LMRA”), 29 U.S.C. § 185(a)

(1988). The CBA includes a mandatory grievance and

arbitration procedure as the exclusive remedy for violations

of the CBA'. Moreover the CBA requires that a- grievance

' CBA, Art. XVI, §§ 1-2, 4.

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must be filed within five days, and that any grievance not

filed within the proscribed period “shall be conclusively

deemed to have been waived.” CBA, Art. XVI § 3. “Asa

general rule in cases to which federal law applies, federal

labor policy requires that individual employees wishing to

assert contract grievances must aftempt use of the contract

grievance procedure agreed upon by the employer and union

as a mode of redress [emphasis added].” Republic Steel

Corp v. Maddox, 379 U.S. 650, 652 (1965). See also

Thomas v. LTV Corp. 39 F.3d 611, 621 (Sth Cir.

1994)(“[I]f the arbitration-and-grievance proceeding is the

exclusive remedy for breach of the CBA, the employee may

not sue his employer under section 301 until completion of

the proceeding”); Strachan v. Union Oil Co., 768 F.2d 703,

704 (Sth Cir. 1985)(“The law is completely clear that

employees may not resort to state tort or contract claims in

substitution for their rights under the grievance procedure in

a collective bargaining agreement.”); Ross v. Runyon, 858

F. Supp. 630, 634 (S.D. Tex. 1994) (“Before bringing suit,

the employee must at least attempt to exhaust the grievance

and arbitration procedures established by the bargaining

agreement.”) Defendant argues that Reece’s failure to file a

timely grievance and to exhaust these exclusive remedies

under the CBA, which constitutes a violation of the CBA,’

waives his right to pursue his claims and requires that

summary judgment be granted to Defendant and that these

now untimely claims be dismissed with prejudice. See Hines

v. Anchor Motor Freight, Inc., 424 US. 554, 563

(1976)(“unless [the bargaining unit employee] attempted to

utilize contractual procedures for settling his dispute with

his employer, his independent suit against the employer in

District Court would be dismissed”); Parham v. Carrier

Corp., 9 F.3d 383, 392 (Sth Cir. 1993) (“we render a

take-nothing judgement against Parham on his breach of

> 2 CBA, Art. XVI, §§ 1-4.

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collective bargaining agreement claims, for failure to invoke

the grievance procedures required under the CBAs”);

Strachan, 768 F.2d at 706-07 (affirming summary

judgement for employer where state tort claims were

preempted by federal law and employees failed to exhaust

grievance procedures).

Conceding that if the LMRA preempts his claims

because they require interpretation of the CBA, then he was

required to exhaust grievance procedures established by the

CBA, Plaintiff responds that pursuant to a continuing

violation theory of discrimination, he has exhausted the

exclusive grievance and arbitration procedures established

by the collective bargaining

agreement. On March 12, 1990, he filed a Charge of

Discrimination (No. 330 90 1276) alleging that he was

subjected to difference terms and conditions of employment

because of his race. He also filed a grievance against

Defendant for violations of the CBA, Article XV § 6, which

was found by the Arbitrator to lack merit. He provides

copies of both. Plaintiff then filed a lawsuit, Raymond L.

Reece v. Houston Lighting and Power Co., 234th Judicial

District Court, Harris County, Texas, which was resolved by

a settlement agreement and a final release on January 5,

1993. Plaintiff filed another Charge of Discrimination on

April 18, 1994, alleging that since January 4, 1993, he had

been retaliated against for having filed a lawsuit based on a

previous charge of discrimination and had been denied

training and promotions because of his race. He points out

various instances of racial discrimination in training and

promotions against blacks at HL&P.

Plaintiff notes that to establish a continuing violation

he must show that the violation was part of a continuously

maintained illegal employment practice. Ross, 858 F. Supp.

at 637; Perez v. Laredo Junior College, 706 F.2d. 731, 734

(Sth Cir. 1983), cert. denied, 464 U.S. 1042 (1984). He has

shown the history of his charges and the application of an

illegal policy toward him and others of his race. Moreover

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since the settlement of his first lawsuit in January 1993, he

has been passed over eight times for a promotion to crew

leader/foreman positions for which he was qualified and

which were assigned to white males, and he was demoted

for a longer time for falsifying company documents and

misuse of company assets than was a white male who tested

positive of [sic] drug use. He notes that the settlement

agreement required Defendant to expunge his personnel file

of the Firm and Final Warning issued to him February 5,

1990, but no expungement took place. He therefore insists

that fact issues exist as to whether Plaintiff exhausted his

remedies under the CBA under a continuing violation

theory.

Alternatively he argues that an employee does not have

to exhaust available grievance procedures if exhaustion of

those remedies would be futile. Parham, 9 F.3d at 390-91:

Rabelais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th Cir.

1978). An employee has the burden of producing some

evidence that use of the grievance procedure would be

futile. Parham, 9 F.3d at 391. Accordingly Plaintiff points

out that his grievance and first Charge of Discrimination

were based on the CBA, Article XV, § 6, and _ that

Defendant has asserted that the same provision governs

Plaintiffs allegations here. Moreover he presents a portion

of a letter dated July 25, 1990 from the Union’s’ legal

counsel in reference to that part of the CBA:

Moreover, we have, in the past arbitrated this

issue, an issue indistinguishable from your

client’s grievance, and have done so without

success. In other words not only does that

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contract language’ appear fairly clear, but an

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render your client’s grievance without merit.

After reviewing the record, the Court finds that

Plaintiff has not pleaded a continuing violation in his

original petition, which has not been superseded. Instead his

original petition references the Charge of Discrimination

that he filed with the Equal Employment Opportunity

Commission and the Texas Commission on Human Rights

on April 18, 1994, Charge No. 330942039, attached as

exhibit A, and the subsequent Notice of Right to Sue letter.

That charge focuses on an April 18, 1994 denial of

promotion to foreman because of his race and in retaliation

for filing the lawsuit. The petition further alleges ongoing

failure to train on July 25, 1994 in retaliation for filing the

April 18, 1994 charge. As its third and final allegation, the

petition asserts that on August 9-11, 1994 Plaintiff was

denied the opportunity to attend a “Troubleshooting Class”

because of race and retaliation.

The Court notes that a plaintiff cannot use a continuing

violation theory “to resurrect claims about discrimination

concluded in the past... .” McGregor v. Louisiana State

University Bd. of Supervisors, 3 F.3d 850, 867 (Sth Cir.

1993), cert. denied, 114 S. Ct. 1103 (1994). Plaintiff's

earlier claims were administratively exhausted, then settled

during a lawsuit with a full and final release executed.

Second. there is no mention in the petition of the previous

charges on which he sought to exhaust the grievance

4 The Court notes that this letter refers to grievance filed by

Plaintiff limited to his demotion from the status of “Head”

Journeyman, to that of simply Journeyman.

The language referred to is the CBA’s Article XV, § 6,

“selection, promotion, demotion, transfer and/or assignment of

Head Journeymen and Head Operators . . [are] within the sole

discretion of the Company.”

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procedure under the CBA. Moreover retaliation is a distinct

basis for alleging discriminatory -conduct. _one _never

presented to the Arbitrator. Thus the Court rejects Plaintiff s

continuing violation theory, apparently raised for the first

time in response to Defendant’s motion for summary

judgment, as a means to circumvent the exhaustion

requirement.

Nor does Plaintiff, who made no effort to exhaust his

intraunion remedies,’ make sufficient showing of futility to

excuse his failure to attempt to use the grievance and

arbitration procedure this time. Plaintiff makes no showing

that the union officials who would hear his grievance were

so hostile that he could not hope to obtain a fair hearing on

his claims or that the grievance procedures would be

inadequate or that they would unreasonably delay his

opportunity to obtain judicial review. While the letter sent

by the union counsel did not encourage Plaintiff to expect

a good result, he was limited to his challenge to his

demotion from the Head Journeyman position and

constituted a realistic assessment of that narrow issue in

light of the clear and unambiguous language of the CBA

giving the Company complete discretion. By itself, without

any effort on Plaintiff's side to attempt to use the exclusive

grievance and arbitration remedies for his new and largely

different claims, the letter cannot excuse Plaintiff from

mandatory exhaustion requirements. Otherwise anyone with

an unlikely chance of success could argue futility. Noting

that “Congress has expressly approved contract grievance

procedures as a preferred method for settling disputes . . .,”

and that the courts have held that an employee must have at

least attempted to use them before initiating a lawsuit, the

Fifth Circuit has stated, “The futility exception requires

exactly that--futility. Before a plaintiff may safely

* It is clear from Plaintiff's earlier grievance that he was fully

aware of the need to exhaust remedies under the CBA.

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disdain available grievance procedures, invoking those

procedures must truly be futile: not annoying, bureaucratic,

or unpromising, but futile. An employee has the burden of

producing some evidence that resort to available grievance

procedures would in fact be futile: his mere subjective belief

or conclusory assertion would not suffice.” Parham, 9 F.3d

at 391 (emphasis added).

Accordingly, the Court

ORDERS that Defendant’s motion for summary

judgment is GRANTED and that Plaintiff's claims are

DISMISSED with prejudice for failure to exhaust

administrative remedies.

SIGNED at Houston, Texas, this 8th day of August,

1995,

Melinda Harmon /sig/

MELINDA HARMON

UNITED STATES DISTRICT JUDGE

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