Reply Brief — Reece v. Houston Lighting & Power Co.

Supreme Court brief1996

Ask Donna

What actually matters in this document.

Text

) Supreme Court, U.S.

\ 2h Ep

No. 96-52

1996

OFFICE OF THE CLERK

In the

Supreme Court of the Unit

OCTOBER TERM, _

RAYMOND REECE,

Petitioner,

Vv.

HOUSTON LIGHTING & POWER COMPANY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

REPLY MEMORANDUM

IN SUPPORT OF CERTIORARI

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 450

2646 South Loop West

Houston, Texas 77054

(713) 665-8558

Attorneys for Petitioner

September 4, 1996

TABLE OF CONTENTS

Wee os ess ie

TABLE OF AUTHORITIES

CASES

Avco Corp. v. Machinists Lodge No. 735,

Wes TAD fo yo be oe

Bushell v. Dean,

781 S.W.2d 652 (Tex. App. -- Austin 1989),

writ denied in part and rev'd in part,

ae ae PE CTOR. IOI)... we ke.

Caterpillar v. Williams,

Wee SRO) Ss ee. 3, 4, 5

Dean v. Ford Motor Credit Co..,

SES F.2d 300 (Sth Cir. 1989) ............

Guzman v. El Paso Natural Gas Co.,

756 F. Supp. 994 (W.D. Tex. 1990) ........

Houston Lighting & Power Co. v. IBEW Local 66.

71 F.3d 179 (Sth Cir. 1995),

Cert. penammg, No. 95-1757 ..............

Lingle v. Norge,

EE So ge es

Livadas v. Bradshaw,

eee ie Oe ED NS Sp

MacArthur v. University of Texas Health Center,

ae eon we, ANS)... tw sk

ili

Oklahoma Tax Commission v. Graham,

Se Si ee his so aa Oh eee

Wilson v. Monarch Paper Co.,

ee Sek. fe Ag |. : ) ere

Wornick Co. v. Casas,

BOO Bi Wa Faw ERs ROO) oo vss oe Sh ed

STATUTES AND RULES

Ee as PE SoS eR ae

PR ass TD .b5. 820 oe 4S FRE eS 2

Labor-Management Relations Act,

29 U.S.C. §§ 151 et seq.

SOCEM: Fuk Aer Us SEOs hie td ste Ve 6am

ee SS Fe Be os aS ee ee ee

No. 96-52

In the

Supreme Court of the United States

OCTOBER TERM,

RAYMOND REECE,

Petitioner,

Vv.

HOUSTON LIGHTING & POWER COMPANY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

REPLY MEMORANDUM

IN SUPPORT OF CERTIORARI

Respondent’s Brief in Opposition to the Petition for a

Writ of Certiorari (“Opp.”) further underscores the need for

this Court’s review of the issues in this case — whether state

law claims of racial discrimination are completely preempted

by section 301 of the Labor-Management Relations Act

(“LMRA”), and so automatically removable to federal court,

simply because the employer raises the collective bargaining

agreement (“CBA”) as a defense to the state law claim.

Perhaps most significant, respondent does not deny that

the lower federal and state courts are in considerable dis-

agreement in their treatment of the preemption of statutory

anti-discrimination claims, and are truly in disarray over the

preemption of common law emotional distress claims. Re-

spondent expressly acknowledges the direct conflict between

the Fifth and Ninth Circuits, Opp. 21-22 n.24, but ignores

the widespread disagreement among the lower courts de-

scribed in the Petition at 13-15, 16-18, 21-22. Respondent’s

elaborate answer is that the Fifth Circuit and the various

courts that have sided with it are right on the preemption

issue, and that other courts are wrong. But none of that,

even if accepted, would sustain the principal flaw in the

ruling below — its vast expansion of removal jurisdiction.'

A. The Removal Issue.

Respondent recognizes, at the outset of its Opposition,

that removal based solely on preemption is at the heart of

this case. To show that removal was proper, respondent then

proceeds with an extensive analysis of the preemption ques-

tion, and indeed, suggests that, if the Court concludes that

the case was properly removed based on the inclusion of a

claim of intentional infliction of emotional distress (“ITED”),

then it would be unnecessary to decide whether the statutory

discrimination claim was preempted. We address that erro-

neous argument below, at 7-8 n.2; for now, it suffices to

note that, under respondent’s analysis, the issues of removal

and preemption are one and the same. Thus, to decide whe-

ther a case like this one is properly removed, a district judge

must first conduct an exhaustive analysis of the merits of the

employer’s preemption defense, like the twenty pages of pre-

emption argument that respondent devotes to it here. And it

must be addressed with the benefit of only such authorities

as the parties can assemble within the tight schedule allowed

by 28 U.S.C. §§ 1446(b) and 1447(c) for removal petitions

and remand motions, and with no discovery or other elabora-

tion of the plaintiff's claim. It is precisely to avoid the need

for federal courts to resolve the merits of cases, in order to

decide whether they have jurisdiction, that petitioner asks the

Court to grant review here to enforce the rulings in Caterpil-

lar v. Williams, 482 U.S. 386 (1987), and Oklahoma Tax

' Respondent does not object to the Court’s consideration of

petitioner’s “removal based on a CBA defense” argument. Cf.

Pet. at 23-24 n.12. Any objections to consideration of that part of

the question are therefore waived. Rule 15.2.

Commission v. Graham, 489 U.S. 838 (1989), that it is the

rare case in which a federal claim not pleaded in the com-

plaint can ever be removed based on complete preemption.

We acknowledge that a plaintiff whose state cause of

action actually seeks to enforce a CBA cannot avoid removal

by artful pleading where a disputed CBA-based claim is

necessary to the success of the action. See Opp. 3 n.1. But,

by the same token, as the Court stressed in Caterpillar, the

artful pleading doctrine does not trump the plaintiff's right to

be master of his own complaint. 482 U.S. at 394-395, 397.

If the plaintiff chooses to rely only on state law claims and

not on the CBA, neither the fact that the plaintiff might also

have claims under the CBA, as respondent contends he does,

Opp. 5-7, nor the fact that respondent may point to the CBA

to negate plaintiff's claims, as the court of appeals ruled and

respondent also contends, Opp. 19 and n.20, warrants

removal to federal court.

Contrary to respondent’s accusation, Opp. 25-30,

petitioner does not question Avco Corp. v. Machinists Lodge

No. 735, 390 U.S. 557 (1968). To the contrary, that case

prescribes a removal principle that is far narrower than

respondent suggests. In Avco, an employer had sued in state

court for the avowed purpose of enforcing a CBA’s no-strike

clause, and the Court held only that such cases, whether

brought in state or federal court, arise exclusively under fed-

eral law and hence are removable. The Court did not hold

in Avco that state employment discrimination or tort cases

necessarily arise solely under federal law, and Caterpillar

and Oklahoma Tax Commission make clear the limits of this

removal doctrine, in that a complaint based on state law

grounds may not be removed simply because the CBA may

negate those claims. Far from showing why the holding and

reasoning of these cases does not forbid removal here,

respondent contents itself with a brief footnote which points

out irrelevant factual distinctions between those cases and

this one. Opp. 28 n.31.

Respondent also contends the case was removable

because, with respect to one of the ways in which petitioner

claims to have been subjected to racial discrimination — the

denial of a promotion to foreman on one occasion — his

complaint noted that a white employee with less seniority had

received that promotion. Because seniority rights themselves

are a creature of contract, respondent argues, all of petition-

er’s claims necessarily depend on the CBA and consequently

are preempted and, in turn, removable. Respondent argues

that this shows that the holding of the Court below actually

and properly rests on a “rare” set of facts requiring reference

to a CBA to resolve a state law discrimination complaint.

This defense of the decision below fails as a reason to

avoid certiorari for several reasons. First, although we do

not doubt that a decision may be affirmed for reasons not

cited by the lower court, the Fifth Circuit did not rely on, or

even refer to, this allegation in the complaint in explaining

why petitioner’s claims were preempted and hence

removable. Quite to the contrary, the court of appeals made

no bones about the fact that preemption was based on the fact

that “the interpretation of the CBA is made necessary by an

employer’s defense.” Pet. App. 3a.

Nor, in fact, is that alternate ground for affirmance

present here. Neither petitioner’s complaint as a whole, nor

even the one fragment that respondent cites, rests on the

CBA. The complaint, which appears as Item F in the

Record Excerpts below, and has been lodged with the Clerk,

is based on allegations of racial discrimination. The alleged

discrimination is set forth in numbered paragraphs IV (actual-

ly consisting of two unnumbered paragraphs) and V (actually

consisting of three unnumbered paragraphs). The reference

to the seniority of a white employee who received one of the

promotions that petitioner was denied is contained in one of

the three subparagraphs of paragraph V, and was intended to

show the existence of evidentiary support for petitioner’s

contention that he was denied this promotion not for one of

the most commonly proffered legitimate reasons — that the

other candidate had more experience — but for racial reasons

only.

Moreover, even that promotion-denial claim does not

depend on an interpretation of the CBA. There is no dispute

about where petitioner stands on the seniority list; nor does

petitioner contend that he was entitled, under the CBA, to the

promotion (or to training opportunities, for that matter). To

be sure, if there were a dispute about those facts, it might

prove necessary to construe the CBA in order to resolve that

dispute. But this Court said in Livadas v. Bradshaw, 114 S.

Ct. 2068, 2078 (1994), that the mere fact that contract terms

must be consulted in the course of deciding a state law claim

does not suffice to preempt the state law claim. And, final-

ly, if the CBA is only a defense, as the Fifth Circuit stated

in finding preemption, Caterpillar makes clear that that is not

a basis for removal.

2. The Preemption Issue.

Respondent’s argdments against review of the preemp-

tion issues in the case are similarly faulty. It contends first

that promotion and training questions may be resolved by the

CBA’s grievance and arbitration procedure. Opp. 5-7. This

argument is legally irrelevant because this Court squarely

held in Lingle v. Norge, 486 U.S. 399 (1988), that the fact

that a state law claim may be parallel to one that could have

been presented under a CBA does not warrant preemption by

the LMRA. The argument is also somewhat disingenuous

because the CBA in this case, as respondent observes later in

its Opposition, at 14-16, expressly reserves to respondent the

sole discretion to assign head journeymen like petitioner or

to promote them to higher positions. Indeed, respondent has

consistently maintained, and in other litigation it has success-

fully argued to the Fifth Circuit, that even for rank-and-file

employees, for whom the CBA does not expressly reserve

such discretion, the right to file a grievance over promotions

does not empower an arbitrator to second-guess respondent's

assessments of employee ability, skill or qualifications.

Houston Lighting & Power Co. v. IBEW Local 66, 71 F.3d

179 (Sth Cir. 1995), cert. pending, No. 95-1757. Thus,

respondent’s contention that petitioner could have brought a

seniority grievance is mystifying at best.

In an effort to treat this case as sui generis, and hence

not worthy of review, respondent claims that its reliance on

portions of the CBA in defense of a charge of violation of

State law is rare. In fact, it is quite typical of what happens

in cases alleging racial discrimination, or retaliation for filing

a workers compensation or other state law claim, or indeed

handicap discrimination. An employee alleges that he or she

was treated differently from other workers. The employer re-

plies that the employee was treated the same as other wor-

kers, citing either common workplace rules, such as those in

a CBA, or specific examples of persons who received similar

treatment. Then the employee responds by trying to show

that the employer’s counterexamples involved different con-

siderations and hence are being cited pretextually. Accor-

dingly, if respondent were correct that the presence of such

an employer defense is enough to require preemption (and

hence removal), then all unionized employers will be able to

exempt themselves from state law employment claims.

This case would have been no different if the CBA said

that there is no such thing as seniority in this workplace. In

that event, petitioner’s claim against respondent would never-

theless be the same, and could be pursued against respondent

under state law without necessitating any examination of the

CBA. In such a situation, the petitioner’s claim would be

almost identical to that of a non-unionized, “at-will” employ-

ee who worked without the coverage of any CBA or other

contractual provision for seniority. Even in such circum-

stances, it often happens that persons who have worked for

the employer for a longer time are more likely, for a variety

of reasons, to be given chances for training and promotion,

and in such cases the fact that a particular employee who

happened to be black was repeatedly passed over in favor of

less experienced white employees would surely be an eviden-

tiary point supporting a claim of discrimination. Just as this

evidentiary point may be invoked in such a case without

preempting the state law claim, so may it be invoked here.

That the CBA here does include seniority provisions,

while withholding any seniority benefits with respect to

promotion and assignments for head journeymen like

petitioner, actually makes it much like the hypothetical at-

will workplace or non-seniority CBA discussed above. But

if references to seniority are sufficient to warrant preemption

of state law claims, then it is hard to imagine any state law

claim that would not be held preempted once the court below

reached this stage of the analysis. Thus, far from being sui

generis, the holding below logically stands for the proposi-

tion that an employer defense based on the CBA will almost

always suffice to warrant preemption of a state law claim.”

? Respondent contends that petitioner did not appeal from the

summary judgment below, but only from the order of remand, and

consequently that if the emotional distress claim was properly held

to be preempted and therefore removable, it is unnecessary to

reach the question of whether the statutory discrimination claim

was preempted and therefore removable. Opp. 11. This argument

is without basis. Both the Notice of Appeal, see Record Excerpts,

Item B, and petitioner’s brief below, see Statement of the Case,

page 1, expressly attacked the order granting summary judgment;

that brief not only discussed the preemption issues at great length,

but relied primarily on cases that involved only preemption and not

removal. Respondent’s brief was similarly addressed, in principal

part, to issues of preemption, and expressly acknowledged that

“[t]he primary dispute centers on whether, under the particular

facts of this case, the LMRA preempts Reece’s race discrimination

claim under the Texas Labor Code.” Br. at 5. The issue was

therefore fully preserved below.

Moreover, even if the case had been properly removed based

on preemption of the emotional distress claim, the judgment below

could not be affirmed in its entirety unless petitioner’s statutory

discrimination claim was also preempted.~ And, indeed, even if

preemption of the emotional distress claim is proper, the lower

(continued. ..)

Respondent’s effort to avoid review of the preemption

of the emotional distress (“ITED”) component of petitioner’s

race discrimination claim should also be rejected. In its

Opposition, at 9-10, respondent suggests for the first time

that Texas law does not permit ITED claims to be brought

either in the employment context generally, or based on

allegations of race discrimination specifically. This argument

was not advanced either in the court of appeals (respondent’s

brief in that court has been lodged with the Clerk) or in the

district court, and so may not be relied on here.

The argument is also quite mistaken for several reasons.

Most important, if petitioner’s state law claims lack merit,

that does not give respondent the right to remove them to

federal court. It is true that, in the cases cited by respon-

dent, particular employment-related ITED claims were held

by federal courts to be insufficient under Texas law. But in

other cases, both Texas and federal courts have upheld ITED

suits based on general employment and employment-discrim-

ination claims. E.g., Wilson v. Monarch Paper Co., 939

F.2d 1138, 1145 (Sth Cir. 1991); Dean v. Ford Motor Credit

Co., 885 F.2d 300, 307 (Sth Cir. 1989); Guzman v. El Paso

Natural Gas Co., 756 F. Supp. 994 (W.D. Tex. 1990);

Bushell v. Dean, 781 S.W.2d 652 (Tex. App. — Austin

1989), writ denied in part, rev’d in part on other grounds,

803 S.W.2d 711 (Tex. 1991). Even the authority cited by

respondent acknowledges that such a claim may be available

in such cases, if the facts are strong enough. See MacArthur

v. University of Texas Health Center, 45 F.3d 890, 898-899

(Sth Cir. 1995) (citing Bushell, Dean, and Wilson). See also

Wornick Co. v. Casas, 856 S.W.2d 732 (Tex. 1993).

2(...continued) Gs

courts might exercise their discretion to remand the remaining state

claim to state court. Therefore, this issue cannot be avoided even

if the holding on the emotional distress claim is affirmed.

On the merits of the preemption issue, respondent

points to a handful of decisions from other courts stating that

particular ITED claims could not be resolved without looking

at the provisions of the CBA to decide whether its actions

were sufficiently outrageous. And some circuits do say that,

in some cases; the law review article cited by respondent,

Opp. 14, similarly urges that ITED claims arising out of the

employment relationship should automatically be preempted.

But as the petition showed, at 17-18, a number of other

courts have been willing to uphold ITED claims against

preemption because they determined that the facts alleged

were so extreme that no construction of the CBA could aid

the employer in its defense of the case.

Here, the employer relies on a CBA provision that does

no more than place respondent on the same footing vis-a-vis

petitioner as a nonunion employer would be against an at-will

employee — that is, the CBA expressly refrains from reg-

ulating the employer’s promotion and assignment of head

journeymen. No construction of this provision would aid the

defense of an ITED case, assuming, of course, that the state

courts and a state jury find the facts compelling enough to

make out a case of ITED in the first place. It is precisely the

failure of the court below to consider the specific provisions

of the CBA at issue, on the theory that the mere existence of

a CBA that addressed questions of promotions and assign-

ments was enough to warrant preemption, that puts it at odds

with other lower courts and warrants this Court’s review of

the preemption of the common law tort of ITED, as well as

the statutory component of petitioner’s race discrimination

claim. And, of course, if the Court agrees with petitioner on

the removal issue, the preemption claims will be decided in

the first instance by the Texas, not federal, courts.

CONCLUSION

The petition for a writ of certiorari should be granted.