# Petition for Writ of Certiorari — Craig v. Brigadier (No. 07-534)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

/ J Supreme Court, U.S.
FIEED

07-534 0C7T 3- 200:

OFFICE OF THE CLERK
In The

No. Ww

SUPREME COURT OF THE UNITED STATES

MATTHEW A. CRAIG,
Petitioner
V.

JOHN BRIGADIER, SUSAN M. BRIGADIER,
DAVID L. BRIGADIER, JACQUELYN F. LENSON,
RISER FOODS COMPANY, d/b/a GIANT EAGLE,
INC.,

' Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

LEONARD EHRENREICH
Counsel of Record
Ehrenreich & Associates
526 Superior Avenue, Suite 1130
Cleveland, Ohio 44114
(216) 861-1070

LLL Lee ee

QUESTIONS PRESENTED

This Court and_ several circuits have
previously held that the Labor Management
Relations Act on/y preempts a claim where the
claim requires interpretation of the terms of a
collective bargaining agreement. Here, the
Sixth Circuit acknowledged that Petitioner’s
complaint relies exclusively upon Ohio law but
concluded that, because resolution of the
claims in the complaint will require a court to
address relationships created through the
collective bargaining process and because the
asserted harm arises out of employment
generally governed by a collective bargaining
agreement, the Labor Management Relations
Act preempts the claims even though no
specific terms require interpretation. Does
the standard applied by the Sixth Circuit for
Labor Management Relations Act preemption
directly conflict with prior decision of this
Court and other circuits such that this Court
should grant certiorari to resolve the conflict?

This Court has_ previously held _ that

examining the existence or severity of the
harm of discharge alleged in a complaint does
not require a court to evaluate the parameters
for proper and improper discharge under a
collective bargaining agreement. Here, the
Sixth Circuit held that “examining the
existence and...severity” of the harm of

III.

discharge as alleged in Petitioner's complaint
will “require the court to evaluate the
parameters for proper and _ improper
discharge” under a_ collective bargaining
agreement and, therefore, the Labor
Management Relations Act preempts the
claims set forth in the complaint. Does the
Sixth Circuit’s decision directly conflict with
this Court’s prior decision such that this Court
should grant certiorari to resolve the conflict?

This Court has_ previously held that
evaluating the existence of an _ alleged
improper motive of a defendant does not
require a court to examine the terms of a
collective bargaining agreement. Here, the
Sixth Circuit held that the complaint’s
assertion of the improper motive of certain
Respondents for committing various torts
against Petitioner would “require the court to
assess the parameters of the current working
environment and the functioning of various
grievance procedures” and, therefore, causes
the Labor Management Relations Act to
preempt the claims. Does the Sixth Circuit's
decision directly conflict with this Court’s
prior decision such that this Court should
grant certiorari to resolve the conflict?

ill

The Labor Management Relations Act only
applies to suits for breach of a collective
bargaining agreement between an employer
and a labor organization. Here, the Sixth
Circuit held that the Labor Management
Relations Act preempted Petitioner’s state law
tort claims against persons who were neither
associated with any employer nor labor
organization at issue herein. Does the Sixth
Circuit's decision directly conflict with
doctrine of this Court and decisions of other
circuits such that this Court should grant
certiorari to resolve the conflict?

28 U.S.C. § 1654 and federal appellate court
decisions hold that any person may conduct
his/her own case in federal court to the same
extent as if represented by counsel. Fed. R.
App. P. 34(a) provides a general entitlement to
oral argument on appeal. Here, as it does in
virtually all cases involving pro se litigants,
the Sixth Circuit denied Petitioner's request
for oral argument. Is the Sixth Cuircuit’s
standing policy of denying oral argument in
cases involving pro se litigants unjust, run
contra to 28 U.S.C. § 1654 and the right of

self-representation otherwise expressed by
prior judicial decisions of this Court and other
circuits, and conflict with Fed. R. App. P. 34(a)
and the implementation of Fed. R. App. P.
34(a) by other circuits such that this Court
should grant certiorari to determine the

validity of the policy?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

DECISIONS BELOW

JURISDICTION

STATEMENT OF THE CASE

I. Petitioner's Employment with Riser
Foods Company

Respondents commit the torts of slander,
libel, tortious interference with an
employment/contractual relationship,
and civil conspiracy against Craig

Craig suffers discharge from employment
for allegedly walking out of a meeting

and thereafter pursues remedy under the

Craig files suit against Respondents for
the commission of several state-law torts

Respondents refuse to respond to Craig's
discovery requests and remove the case
to federal district court

VI. Craig files motion to remand for lack of
subject matter jurisdiction and the

District Court denies the same

VII. Craig repeatedly requests permission to

conduct discovery and the District Court
fails to answer the requests

VIII. The District Court awards summary
judgment to Respondents ...............ccccceceececeeess g

IX. Craig appeals the denial of his remand

motion and entry of summary judgment
in favor of Respondents and the Sixth

Circuit denies the Parties’ request for
oral argument and affirms the District

Cer te i TE nn vcscoveceovaenee 9

ARGUMENT

I. THE SIXTH CIRCUITS DECISION IN

THE CAS. SUB JUDICE VASTLY
EXPANL. “ND CONFLICTS WITH THE
PRIOR DECISIONS OF BOTH THIS
COURT AND DECISIONS OF OTHER
CIRCUITS HOLDING THAT THE LMRA
DOES NOT PREEMPT A CLAIM
UNLESS THE CLAIM REQUIRES
INTERPRETATION OF TERMS OF A
CBA AND THIS COURT SHOULD,
THEREFORE, GRANT CERTIORARI TO
RESOLVE THE CONFLICT

. THE SIXTH CIRCUITS CONCLUSION

THAT “EXAMINING THE EXISTENCE
AND (POTENTIALLY) THE SEVERITY”
OF THE HARM OF DISCHARGE WILL
“REQUIRE THE COURT TO EVALUATE
THE PARAMETERS FOR PROPER AND
IMPROPER DISCHARGE” UNDER A
CBA AND, THEREBY, GIVE RISE TO
LMRA PREEMPTION DIRECTLY
CONFLICTS WITH THIS COURT'S
PRIOR DECISIONS AND THIS COURT
SHOULD, THEREFORE, GRANT
CERTIORARI TO RESOLVE THE
CONFLICT

. THE SIXTH CIRCUIT'S CONCLUSION
THAT EVALUATION OF
RESPONDENTS’ IMPROPER MOTIVE
OF ATTEMPTING TO “OBTAIN A
MORE LAX WORKING ENVIRONMENT

Vill

IV.

FOR JOHN M. BRIGADIER’ WILL
REQUIRE THE COURT TO ASSESS
THE PARAMETERS OF THE CURRENT
WORKING ENVIRONMENT AND THE
FUNCTIONING OF VARIOUS
GRIEVANCE PROCEDURES” UNDER A
CBA AND, THEREFORE, RESULT IN
LMRA PREEMPTION OF ALL OF
CRAIG’S CLAIMS DIRECTLY
CONFLICTS WITH THIS COURT'S
PRIOR DECISIONS AND THIS COURT
SHOULD, THEREFORE, GRANT
CERTIORARI TO RESOLVE THE
RTE Midi delsehicearasverssssorsiqseveveveunessseserens 28

THE SIXTH CIRCUIT'S DECISION
HOLDING THAT THE LMRA
PREEMPTED CRAIG’S CLAIMS
AGAINST PERSONS WHO HAD NO
RELATIONSHIP WITH UCFW NOR
RISER WHATSOEVER IS PATENTLY
CONTRARY TO THE LANGUAGE OF
THE LMRA, INTERPRETATION OF
THE LMRA BY THIS COURT AND
OTHER CIRCUITS, AND
FUNDAMENTAL CONCEPTS OF
CONTRACT LAW, AND THIS COURT
SHOULD, ACCORDINGLY, GRANT
CERTIORARI TO CORRECT THE SAME. ....30

". THE STANDING POLICY OF THE
SIXTH CIRCUIT AND SEVERAL OTHER

CIRCUITS OF DENYING ORAL
ARGUMENT TO PRO SE LITIGANTS
RUNS AFOUL OF 28 U.S.C. § 1654, FED.
R. APP. P. 34(a), PRIOR DECISION OF
THIS AND OTHER COURTS, THE
NOTION OF EQUALITY UNDER THE
LAW, EQUAL ACCESS TO THE
COURTS, AND CONFLICTS WITH
OTHER CIRCUITS’ IMPLEMENTATION
OF FED. R. APP. P. 34(a) SUCH THAT
THIS COURT SHOULD GRANT
CERTIORARI TO CORRECT THE SAME

APPENDIX

Sixth Circuit Order (7/10/07)
Denying Rehearing........................45 Appendix ~ 1

Sixth Circuit Order Affirming
District Court (6/4/07) ..........0000 cece Appendix - 1

First Amended Complaint ............ Appendix - 13

Listing of Private Party Civil Cases Denied Oral
Argument Pursuant to Sixth Circuit Rule 34G)
(April 1, 2005 - March 31, 2006) ...Appendix - 31

TABLE OF AUTHORITIES

Cases Page(s)
Allis-Chambers Corp. v. Lueck,
EE Be ais senha asi tnbvevninctneects 13, 16, 24

Brookeside Ambulance, Inc. v. Walker Ambulance
Serv., 112 Ohio App.3d 150, 678 N.E.2d 248
as ie datiusgileesess 19

Campbell v. Kane, Kessler, P.C.,
144 Fed. Appx. 127 (2d Cir. 2005)...............00000088 24

Caterpillar, Inc. v. Williams, 482 U.S. 386
<_ Eeshg Sk SREP URS HESS eee ee Aen em aon ee 13-15

Collins v. Bradley, 122 F.3d 1067
I sc vasdedgnccbustpneloaied 24

Dashields v. Robertson,
2000 U.S. App. LEXIS 9533 (4th Cir. 2000)........... 20

DeCoe v. Gen. Motors Corp., 32 F.3d 212
ae at 16, 22-23

Doyle v. Fairfield Mach. Co., Inc.,
120 Ohio App.3d 192, 697 N.E.2d 667
a cuuintndaiods 19

Dryden v. Cincinnati Bell Tel. Co.,
135 Ohio App.3d 394, 734 N.E.2d 409
CR I PO sic idics «ec dhcchsmeicces Sec tacipnuscsnssoupn 18-19, 21

XI

Faretta v. California, 422 U.S. 806 (1975)............. 32

Farmer v. United Brotherhood of Carpenters
& Joiners of America, Local 26,
Ne es NE SF Pci oils icine dcbanisiindipos rdebaudany vensvas 34

Foy v. Pratt & Whitney Group, 127 F.3d 229
Tt EE isa hss hcaiela nies anccionsiees 34

Franks v. The Lima News, 109 Ohio App.3d 408,
672 N.E..2d 245 (3d Dist. 1906) ....:.icscccciscecesiesssencee 19

Fred Stegel Co., L.P.A. v. Arter & Hadden,
85 Ohio St.3d 171, 707 N.E.2d 853 (1999)....... 20, 29

Galvez v. Kuhn, 933 F.3d 773 (9% Cir. 1991)........ 34
Gay v. Carlson, 60 F.3d 83 (2d Cir. 1995).............. 21

Graham v. Contract Transp., Inc.,
I Oe Tr Ee iN Pi vcvciccressccveciaccccesssseees: 21

Hawaiian Airlines, Inc. v. Norris,
512 U.S. 246 (1994)......... 10. 34°15, 17, 21-22, 26°29

Int7 Union, United Mine Workers of America V.
Covenant Coal Corp., 977 F.2d 895
i a ie spel bivdddnaeane 30-31

Kern v. Dannon Co., Inc., 71 Fed. Appx. 442
RN I aa cla dds tba dendoseaonedsnkes 24

Laurel Valley O1l Co. v. 76 Lubricants Co.,
154 Ohio App.3d 512, 797 N.E.2d 1033
Be I hia sas ncacenscacidedisviseietnousucuin 18, 20

Xi

Lawson v. AK Steel Corp., 121 Ohio App.3d 251,
699 N.E.2d 951 (12th Dist. 1997) .............ccccccsccceeees 19

Lewis v. Fairview Hosp., 156 Ohio App.3d 387,
806 N.E.2d 185 (8t' Dist. 2004) .............ccceeeeeeeeeeeee: 29

Lingle v. Norge Div. of Magic Chef, Inc.,
486 U.S. 399 (1988) 10, 13-14, 17, 22, 24, 26-29

Linn v. United Plant Guard Workers of America,
Local 114, 383 U.S. 53 (1966)

Livadas v. Bradshaw, 512 U.S. 107
| RAE RAIL ERLE a A CSR hm 15, 17, 24, 26

Lopez v. Fox Television Animation, Inc.,
76 Fed. Appx. 769 (9 Cir. 2003)

Lydon v. Boston Sand & Gravel Co., 175 F.3d 6
Oe SD eae oe ek Rae eee ae 34

Mever v. Schnucks Markets, Jnc., 163 F.3d 1048
GPP EI, Be ssciavticiccevrenmaceociilctbiesnccciacien, 20

OReilly v. New York Times Co., 692 F.2d 863
(2d Cir. 1982)

Papa v. Truland Systems Corp., 162 F.3d 1155
(4th Cir. 1998)

Potts v. Wilson, 54 Fed. Appx. 190
(6 Cir. 2002)

Ratig v. A.H. Belo Corp., 203 F.3d 832
(9th Cir. 1999)

Shiflett v. I.T.O. Corp. of Baltimore,
eR ke eee 24

Texton Lycoming Reciprocating Engine Div.,
AVCA Corp. v. UAW, 523 U.S. 653 (1998)

Tindall v. Poultney High Sch. Dist.,
PoE eS GF 1G. ge: .| See 00, OO

Turner v. American Fed. of Teachers Local 1565,
138 F.3d 878 (11th Cir. 1998)

Wilds v. UPS, Inc., 262 F. Supp. 2d 163
I ee

Zbuka v. Marathon Ashland Petroleum, LLC,
No. 06-4314 (6t Cir. June 25, 2007)

Statutes

ts HE I ihcccinceiccbvousinipneninnsenaceeshcoulacel 2, 32, 35

Et ok SARA AR rs Pari aie Pee PALL passim

Other Page(s)
Note, Zhe Need for a New Approach

to Federal Preemption of Union Members’

State Law Claims, 99 Yale L.J. 209 (1989) ...........34

Administrative Office of the United States
Courts, 2006 Annual Report of the Director,
IS cilaicstladicsascssaacesiuliletiacl aig ood stains Ginsctdtlatesasapleabeits 23

Administrative Office of the United States
Courts, 2006 Federal Judicial Caseload

DECISIONS BELOW
The Sixth Circuit’s decision below is
unpublished. The District Court’s decision below is
also unpublished, but appears on Westlaw under the
citation: 2006 WL 840364.

JURISDICTION

The United States Court of Appeals for the
Sixth Circuit entered an order affirming the district
court below on June 4, 2007. With leave of court,
Petitioner filed a Petition for Rehearing with the
Sixth Circuit on July 3, 2007. The Sixth Circuit
denied the Petition for Rehearing on July 10, 2007.
This Court has jurisdiction to review the decisions
below pursuant to 28 U.S.C. § 1254(1).

STAT S INVOLVED
Section 301 of the Labor Management

Relations Act (29 U.S.C. § 185) provides, in pertinent
part:

(a) Venue, amount, and citizenship

Suits for violation of contracts between
an employer and a labor organization
representing employees in an industry
affecting commerce as defined in this
chapter, or between any such labor
organizations, may be brought in any
district court of the United States
having jurisdiction of the parties,
without respect to the amount in
controversy or without regard to the

citizenship of the parties.

28 U.S.C. § 1654, entitled “Appearance
personally or by counsel,” provides:

In all courts of the United States the
parties may plead and conduct their
own cases personally or by counsel as,
by the rules of such courts, respectively,
are permitted to manage and conduct
causes therein.

STATEMENT OF THE CASE

Petitioner’s Employment with Riser Foods
Company.

Respondent Riser Foods Company, a retail
grocery chain doing business as Giant Eagle, Inc.
(hereinafter “Riser’) hired Petitioner Matthew A.
Craig (hereinafter “Craig”) as a Part-Time Grocery
Clerk for its retail store #0185 located in Middleburg
Heights, Ohio (hereinafter “0185”), and Craig began
work on July 27, 2003. (First Amended Complaint
£10). Upon entering into the employment
relationship with Riser, Craig became subject to a
collective bargaining agreement (hereinafter “the
Agreement”) by and between Riser and United Food
& Commercial Workers Union Local No. 880
(hereinafter “UFCW”). (First Amended Complaint
©9). Riser regularly employed Craig at 0185 until
his discharge on July 1, 2004. (First Amended
Complaint £11). Sometime after Riser hired Craig,

Riser hired Respondent John M. Brigadier to work
at 0185.

II. Respondents commit the torts of slander, libel,
tortious interference with an

employment/contractual relationship, and
civil conspiracy against Craig.

Sometime before June 25, 2004, without any
provocation or notice to Craig, John M. Brigadier
falsely and maliciously alleged to others including,
but not limited to, Respondents Sue M. Brigadier,
David L. Brigadier, Jacquelyn F. Lenson (hereinafter
“Lenson”), and two (2) persons identified by John M.
Brigadier in a written statement who are not parties
to this action, that Craig had committed sexual
harassment against him. (First Amended Complaint
921; First Affidavit of Matthew A. Craig 4414-16,
District Court Docket Item 28, Exhibit 'D'; Unsworn
Declaration of Jacquelyn Lenson Baon, Exhibit ‘A,’
District Court Docket Item 26). John M. Brigadier’s
motive in making the false and unprovoked
allegations was to injure Craig’s contractual
relationship with Riser and to secure a more lax
working environment for himself under the
supervision of a more lenient supervisor. (First
Amended Complaint 422, 64).

Upon receiving the false allegations, Sue M.
Brigadier and David L. Brigadier caused the further
publication of the allegations to others including, but

not limited to, Riser. by and through its employees,
even though they knew or should have known the
allegations to be specious. (First Amended

Complaint ©4926, 32-33; First Affidavit of Matthew
A. Craig 4914-17, District Court Docket Item 28,
Exhibit 'D') Unsworn Declaration of Jacquelyn
Lenson Baon, Exhibit ‘A,’ District Court Docket Item
26). Sue and David Brigadier’s motive in publishing
the false allegations was to injure Craig’s
contractual relationship with Riser, attempt to
vicariously obtain damages from Riser, and/or
attempt to obtain a more lax working environment
for their son John M. Brigadier. (First Amended
Complaint 9426, 67).

Upon receiving the false allegations, Lenson
and Riser, by and through Lenson, caused the
further publication of the allegations even though
they knew or should have known the allegations to
be specious. (First Amended Complaint 4938-40, 43-
45, 52-53). Lenson’s publication included statements
not made during the course of any legitimate
investigation of the false allegations and publishing
to others outside of Riser management. (First
Affidavit of Matthew A. Craig %14-16, District
Court Docket Item 28, Exhibit 'D'). Lenson’s motive
in publishing the false allegations was to benefit her
employer, Riser, by injuring Craig’s contractual
relationship with Riser and thereby reducing the
risk of Sue M. Brigadier and David L. Brigadier from
bringing a lawsuit on behalf of John M. Brigadier
against Riser. (First Amended Complaint 53).

In addition to perpetuating the false sexual
harassment allegations, Lenson also falsely and
maliciously accused Craig, in the presence of others,
of having committed criminal voyeurism in relation

to a non-party employee. (First Amended Complaint
48).

Sometime before June 25, 2004, without any
provocation or notice to Craig, John Doe falsely and
maliciously alleged to others in written and/or oral
form that Craig had ordered an employee under
eighteen years of age to operate hazardous
machinery in violation of federal and state laws
including 29 C.F.R. § 570.63, section 4109.05 of the
Ohio Revised Code, and section 4101:9-2-10 of the
Ohio Administrative Code. (First Amended
Complaint 4956, 60). John Doe’s motive in making
the false allegations was to injure Craig's
employment/contractual relationship with Riser and,
thereby, secure a more lax working environment
under the supervision of a more lenient supervisor.
(First Amended Complaint 9957, 61, 71, 73).

The tortious conduct of Respondents herein
has subjected Craig to ridicule and has caused Craig
to suffer personal humiliation, mental anguish, and
degradation of his reputation that, in turn, has
caused Craig to suffer personal, professional, and
financial injury. (First Amended Complaint © 22-23,
29-30, 33-34, 40-41, 45-46, 49-50, 54, 57-58, 61-62,
65, 69, 74, 77, 80).

III. Craig suffers discha t

allegedly walking out of a meeting and
thereafter pursues remedy under _ the

Agreement.

On June 25, 2004, Riser demoted Craig from

his position as Manager-in-Charge and terminated
his emjpyment on July 1, 2004.

In response to his discharge, Craig filed a
grievance with Riser on July 12, 2004, contesting his
discharge and alleging various other violations of the
Agreement by Riser. The grievance proceeding
ultimately culminated in arbitration to decide
whether Craig had impermissibly walked out of a
meeting with Riser management and, thus, whether
Riser validly discharged Craig for insubordination
under the terms of the Agreement. An arbitrator
rendered a decision on June 22, 2005, disposing of
Craig’s grievance under the Agreement.

IV. Craig files suit against Respondents for the
commission of several state-law torts.

On July 20, 2004, Craig commenced a civil
action against Respondents including John Doe, a
fictitiously named defendant whose true name and
address were unknown at the time of filing, in the
Court of Common Pleas, Cuyahoga County, Ohio, for
the commission of several state-law torts including
libel, slander, tortious interference with an
employment/contractual relationship, and _ civil
conspiracy. (First Amended Complaint 4417-80). On
August 5, 2004, Craig filed a First Amended
Complaint (hereinafter “FAC”) with the Court of
Common Pleas, correcting the names and addresses
of two (2) of the Respondents.

In setting forth the state-law tort claims in his
FAC, Craig specifically stated that he did not make
the claims pursuant to a _ collective-bargaining

agreement (hereinafter "CBA") nor did any of the
claims arise out of any rights contained therein.
(FAC 49). In addition, the FAC contained no claims
premised on federal law.

V. Respondents refuse to respond to Craig's
discovery requests and remove the case to

federal district court.

On August 26, 2004, Respondents, by and
through counsel, removed the action to the United
States District Court for the Northern District of
Ohio and refused to respond to the discovery
requests. (District Court Docket Item 28, Exhibit
'C'). Respondents based removal on their assertion
that Craig’s claims required interpretation of a CBA
and, therefore, section 301 of the Labor Management
Relations Act (““LMRA”), 29 U.S.C. § 185, preempted
the claims from adjudication in state court. (Notice
of Removal 4420, 22, 25-26, 28 (District Court
Docket Item 1)).

VI. Craig files motion to remand for lack of

subject matter jurisdiction and the District
Court denies the same.

On September 14, 2004, Craig served and filed
with the District Court a Motion in Opposition to
Removal and Motion to Remand for Lack of Subject
Matter Jurisdiction (hereinafter “Motion to
Remand’), along with a memorandum in support.
(District Court Docket Item 7). The District Count
entered an order denying Craig’s Motion to Remand

on May 23, 2005.

VII. Craig repeatedly requests permission to
conduct discovery and the District Court fails

to answer the requests.

In the months following Craig’s filing of his
Motion to Remand and prior to the District Court
reaching a decision on the same, Craig filed both a
Motion to Proceed with Discovery and an Amended
Request for Ruling on Motion to Remand. (District
Court Docket Items 13 & 18). The District Court
failed to respond to either filing until it declared
them as “moot” in its decision on the Motion to
Remand. (Order Denying Remand at 7, District
Court Docket Item 20).

On July 19, 2005, Respondents filed a Motion
for a Protective Order to Stay Discovery (hereinafter
“Motion to Stay Discovery’) and a Motion for
Summary Judgment (hereinafter “MSJ), (District
Court Docket Items 25 & 27), and refused to respond

to any of Craig’s discovery requests until the District
Court ruled on the Motion to Stay Discovery.’ Craig
opposed both motions. The District Court declined
to rule on the Motion to Stay Discovery until it
rendered its decision on Respondents' MS./, at which

' This Court should note that at no previous time had Craig been able to
obtain discovery from Respondents due to Respondents’ refusal to
produce documents requested prior to removal and due to the District
Court's subsequent continuance of the federal Case Management

Conference until it ruled on the Motion to Remand.

time it merely held the Motion to Stay Discovery to
be “moot”. (Order Granting Summary Judgment at
7, District Court Docket Items 50-51).

VIII. The District Court awards summary judgment
to Respondents.

On March 30, 2006, the District Court granted
summary judgment in favor of all Respondents.
(District Court Docket Items 50-51).

IX. Craig appeals the denial of his remand motion
and entry of summary judgment in favor of

Respondents and the Sixth Circuit denies the

Parties’ request for oral argument and affirms
the District Court’s decisions below.

On May 1, 2006, Craig filed his Notice of
Appeal from the final judgment of the District Court
with the United States Court of Appeals for the
Sixth Circuit. The Parties fully briefed the matter
and all Parties requested oral argument in
accordance with Sixth Circuit Rule 34(a). Following
the Sixth Circuit’s granting of Respondents’ motion
for leave to file an appendix on August 23, 2006, the
Parties received no further communication from the
Sixth Circuit until June 4, 2007. At no time prior to
June 4, 2007, did the Sixth Circuit indicate to the
Parties that it would refuse their request for oral
argument.

On June 4, 2007, the Sixth Circuit issued an
order reciting much of the _ District Court’s
memoranda below and affirming the District Court’s

decisions holding the LMRA to preempt Craig’s
claims against Respondents and awarding summary
judgment to all Respondents. As did the District
Court, the Sixth Circuit completely failed to respond
to or even acknowledge any of the arguments Craig
made in his briefs or acknowledge this Court’s
controlling decisions, such as Lingle, infra, Hawaiian
Airlines, infra, and Texton, infra, even though Craig
cited and discussed each of these cases in his briefs.

On July 3, 2007, Craig filed a Petition for
Rehearing with the Sixth Circuit, alerting the court
to a slew of clear factual and legal errors it made in
its decision of June 4, 2007. The erroneous factual
findings the Sixth Circuit made in reaching its
decision, as noted in the Petition for Rehearing,
include:

1. Its statement that Craig “originally filed this
civil action in the Cuyahoga County Court of
Common Pleas contesting the outcome of a
dispute he had with his former employer, Riser
Foods Company...” (Order at 1) even though
Respondents’ own admissions in their Brief (at
7), the arbitration decision Respondents
previously submitted, and the docket of Matthew
A. Craig v. John M. Brigadier, et al., Cuyahoga
County Court of Common Pleas Case No. 04-
536338, plainly show that Craig originally filed
this civil action in the Cuyahoga County Court of
Common Pleas long before he and Riser
submitted a separate dispute concerning an
alleged incident of insubordination to arbitration
and even before Craig and Riser held the first

10

meeting with respect to this separate dispute.?

2. Its statement that Craig’s termination resulted
from a grievance process established by a CBA
(Order at 4), even though the record contains no
evidence that Craig’s termination resulted from
a grievance process established by a CBA, even
though the arbitration decision submitted by
Respondents plainly indicates that Craig did not
initiate any grievance proceeding established by
a CBA until after the termination of his
employment, and even though the FAC clearly
indicates that the conduct forming the basis for
Craig’s claims occurred prior to any demotion,
prior to any discharge, and prior to Craig's
commencement of any grievance proceeding.?

3. Its suggestion that Craig commenced the instant
civil action to contest his termination of
employment (Order at 1-2, 5-6) even though the
insubordination matter Craig and_ Riser
submitted to arbitration appears nowhere in
Craig’s FAC and even though Craig has never
challenged or otherwise complained of the
arbitrator’s decision in this civil suit.

4. Its suggestion that the within action involves a

> Thus, Craig could not have filed this civil action in the Cuyahoga
County Court of Commen Pleas to contest an "outcome" of a dispute

with Riser because no “outcome” yet existed.

* Craig plainly states in his FAC that the claims first arose prior to June
25, 2004. (See FAC $921, 56, 60).

11

dispute solely between Craig and Riser even
though the FAC. evidences that Craig
commenced the instant civil action against six
(6) separate defendants, two (2) of which never
had any direct connection to Riser whatsoever,
and even though Craig charges only two (2) of
the fourteen (14) counts set forth in the FAC
against Riser.

On July 10, 2007, the Sixth Circuit denied the
Petition for Rehearing without opinion. Craig now
respectfully requests this Court to grant certiorari in
the within matter to correct significant legal conflict
between the Sixth Circuit’s decision of June 4, 2007,
and prior decisions of this Court and other circuits.

ARGUMENT

THE SIXTH CIRCUIT’S DECISION IN THE
CASE SUB JUDICE VASTLY EXPANDS
AND CONFLICTS WITH THE PRIOR
DECISIONS OF BOTH THIS COURT AND
DECISIONS OF OTHER’ CIRCUITS
HOLDING THAT THE LMRA DOES NOT
PREEMPT A CLAIM UNLESS THE CLAIM
REQUIRES INTERPRETATION OF TERMS
OF A CBA AND THIS COURT SHOULD,
THEREFORE, GRANT CERTIORARI TO
RESOLVE THE CONFLICT.

Section 301 of the LMRA provides that “[s]uits

for violation of contracts between an employer and a

labor organization...may be brought in any district
court of the United States having jurisdiction...” 29
U.S.C. § 185 (emphasis added). This Court has
interpreted the language and purpose of the LMRA
to preempt state court adjudication of claims
requiring interpretation of CBAs so as to allow the
federal courts to foster uniform meanings for
disputed labor-contract terms and to prevent the
chaos that would likely arise by allowing the
individual states to fashion their own meanings for
such terms. A//is-Chambers Corp. v. Lueck, 471 U.S.
202, 208-12 (1985).

To effectuate the purpose of the LMRA, this
Court has repeatedly held that the LMRA preempts
state-law claims brought in state court by a party to
a CBA from adjudication in state court on/y if the
claims require interpretation of CBA terms. Lingle v.
Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413
(1988). Where adjudication of a state-law claim does
not absolutely require interpretation of the meaning
of a CBA term, the claim is “independent” of the
CBA and is not subject to LMRA preemption. /d. at
409-10. Mere consultation of a CBA’s terms is not
sufficient to cause LMRA preemption. /d. at 413
n.12. Even in instances where state law creates a
cause of action that is virtually identical to the
nature of a claim available under a CBA, the LMRA
does not preempt the state-law claim from
adjudication in state court so long as there exists a
possibility to reach a judgment on the claim without
interpreting the meaning of any term of a CBA. /d.
at 409-13: Caterpillar, Inc. v. Williams, 482 U.S. 386,

394-95 (1987). Where a plaintiff may prove claims
through factual circumstances and evidence of
tortious motive, rather than citation to CBA
language, the claims are beyond the preemptive
reach of the LMRA. Hawauian Airlines v. Norris, 512
U.S. 246, 261-62, 266 (1994); Lingle, 486 U.S. at 407-
13.

In the context of addressing LMRA
preemption, this Court has previously said that, in
order for subject matter jurisdiction based on a
question of federal law (e.g., interpretation of CBA
terms) to exist, the plaintiff must plainly disclose the
federal question on the face of the complaint.
Caterpillar, 482 U.S. at 392. This is the "well-
pleaded complaint rule". Jd. A plaintiff is the
“master” of the claims he brings against any
defendant and he, alone, has the power to determine
the theories under which he will sue and under what
law he will bring his claims. Lingle, 486 U.S. at 410
n.10; Caterpillar, 382 U.S. at 395-99.

A limited exception to the well-pleaded
complaint rule is the “complete preemption
doctrine”. Caterpillar, 382 U.S. at 393-94. The
complete preemption doctrine serves to prevent a
plaintiff from asserting a state law claim to enforce a
CBA. /d. at 393-94. This Court has said that the
complete preemption corollary to the well-pleaded
complaint rule only applies when a complaint asserts
rights created by a CBA or asserts claims
substantially dependent on CBA terms. /d. at 394-
95. This Court has further said that, despite the
complete preemption doctrine, “a federal question

must [still] appear on the face of the complaint” in
order for a defendant to remove the matter to federal
court. /d. at 398-99. “(I]t is the legal character of a
claim [rather than the facts underlying the
claim]...that decides whether a state cause of action
may go forward”. Livadas v. Bradshaw, 512 U.S.
107, 123-24 (1994). This Court has said that the law
fully entitles a plaintiff to assert only claims based
on state law and, when he chooses to do so, the
courts must respect this decision. Hawanan Airlines,
512 U.S. at 260-66. If a plaintiff does not plead
allegations sufficient to give rise to federal subject
matter jurisdiction on the face of the complaint, a
defendant cannot cause federal subject matter
jurisdiction to exist, and thereby choose the forum
for the action, by simply re-characterizing the claims
the plaintiff has pled or by raising defenses created
from federal law or found in a CBA. Caterpillar, 382
U.S. at 398-99.

In arriving at its decision in the case sub
Judice, the Sixth Circuit acknowledges that “Craig's
complaint relies exclusively upon Ohio law”. (Order
at 3). The court then suggests that Craig’s exclusive
reliance on Ohio law is not determinative of federal
subject matter jurisdiction in light of the “complete
preemption doctrine”. (/d.). In applying the doctrine
and LMRA preemption, the Sixth Circuit concludes,
without explanation, that resolution of Craig's
claims “will require a court to address relationships
that have been created through the collective
bargaining process and to mediate a dispute founded
upon right [sic] created by a CBA”. (Ud. at 4)

1S

—

(quoting DeCoe v. Gen. Motors Corp., 32 F.3d 212,
218 (6th Cir. 1994)). In so doing, the Sixth Circuit’s
decision is not only logically and _ legally
inconsistent,4 but conflicts with this Court’s
decisions with respect to LMRA preemption in at
least three (3) significant ways.

First, the Sixth Circuit’s decision sanctions,
under the guise of the complete preemption doctrine,
construing a complaint based exclusively upon state
law as a complaint based on rights created by a CBA
without identifying any particular terms of a CBA
that require interpretation. As this Court has
explained, the entire purpose for LMRA preemption
is to allow the federal courts to foster uniform
meanings for disputed labor-contract terms. A//is
Chambers, 471 U.S. at 208-12. Holding a claim as
preempted by the LMRA without identifying those
CBA terms that a state court would necessarily need
to interpret to resolve the claim fails to advance the
purpose of LMRA preemption and _ needlessly
interferes with states’ interests in governing the
relationships among those within their boundaries.
Here, the courts below have utterly failed to cite to
any provisions of a CBA that govern Craig’s claims
whatsoever.

Second, the Sixth Circuit’s decision indicates
that a court’s finding that it will need to “address the
relationships that have been created through the

* The Sixth Circuit's decision is logically and legally inconsistent in that.
if Craig bases his claims “exclusively” upon Ohio law. he does not base

his claims upon nights created by a CBA.

16

collective bargaining process” in order to resolve a
claim is a sufficient substitution for this Court’s
requirement that a claim require interpretation of
CBA terms in order for a court to impose LMRA
preemption. Thus, in the Sixth Circuit’s view, the
mere existence of a collective bargaining relationship
between parties is sufficient to entangle any claims
between the parties in the quagmire of LMRA
preemption. Again, this Court has said that the
LMRA does not preempt claims that do not actually
require interpretation of CBA terms. Hawaiian
Alrlines, 512 U.S. at 262-63; Livadas, 512 U.S. at
123-24; Lingle, 486 U.S. at 407-13. Mere
consultation of CBA terms is not enough, and LMRA
preemption does not arise merely because the
plaintiff employee is a party to a CBA with the
defendant employer. Lingle, 486 U.S. at 413 n.12;
Caterpillar, 482 U.S. at 397 n.10.

Third, the Sixth Circuit’s decision holds that
the LMRA preempts Craig’s claims even though his
libel, slander, tortious interference, and _ civil
conspiracy claims fail to indicate, on their face, that
they rely on the terms of a CBA for their resolution
and even though they do not require interpretation
of a CBA for their resolution. This Court should first
observe that Craig expressly states in his FAC that
he premises none of the claims contained therein
upon rights of a CBA. In fact, the only instances in
which Craig even mentions a CBA in the FAC is in
paragraph nine, where he expressly states that
“none of the causes of action being alleged hereunder
are covered by or subject to the collective bargaining

17

agreement,” and in paragraph sixteen, where he
acknowledges for factual background purposes, his
involvement in an alternative dispute resolution
process concerning certain contractual violations
that he expressly excludes from this suit (emphasis
added). Craig makes no other reference to a CBA at
any other place in the FAC, which contains fourteen
separate counts/claims against six individual
defendants.®

Aside from Craig’s express denial in his FAC
that he premises any of his claims on a CBA and the
FAC’s plain lack of reference to CBA provisions, the
FAC plainly sets forth defamation, tortious
interference, and civil conspiracy tort claims based
entirely on state law. Linn v. United Plant Guard
Workers of America, 383 U.S. 53, 61-67 (1977) (the
right to be free of defamation is a right created by
state law, not a CBA); Dryden v. Cincinnati Bell Tel.
Co., 135 Ohio App.3d 394, 400-03, 734 N.E.2d 409
(1st Dist. 1999) (the rights to be free of defamation
and tortious interference with employment are
rights created by state law, not a CBA). Laurel
Valley Oil Co. v. 76 Lubricants Co., 154 Ohio App.3d
512 (5th Dist. 2003) (civil conspiracy as cognizable
under state tort law).

: Craig asserts only two (2) of the fourteen (14) counts’claims against
Riser and he expressly premises liability on these claims on ratification
of intentional torts by Riser's employees. (FAC %€52, 76). Craig never

mentions discharge of employment in these counts‘claims. (See /d.).

To establish a claim for libel (or slander)
under state tort law, a plaintiff must show the
existence of: (1) a false and defamatory statement:
(2) in written (or oral) form: (3) that is published
without privilege to a third person: (4) fault of the
publisher for making the publication and; (5) in some
instances, damages sustained therefrom. Lawson v.
AK Steel Corp., 121 Ohio App.3d 251, 256, 699
N.E.2d 951 (12th Dist. 1997); Franks v. The Lima
News, 109 Ohio App.3d 408, 412, 672 N.E.2d 245 (3d
Dist. 1996).

To establish a claim for tortious interference
with an employment/contractual relationship under
state tort law, a plaintiff must show the following:
(1) the existence of an employment relationship or
contract; (2) the wrongdoer’s awareness of the
existence of the relationship/contract; (3) the
wrongdoer’s intentional interference with the
relationship/contract so as to induce or otherwise
cause a discontinuance thereof; (4) lack of

* Ohio courts have interpreted this element as requiring a showing of the
“action taken” or "intent" by the wrongdoer to procure non-performance
of a contract or discontinuance of the relationship by a third person rather
than a showing of actual breach. See, e.g., Brookeside Ambulance, Inc. v.
Walker Ambulance Serv., 112 Ohio App.3d 150, 155-57, 678 N.E.2d 248
(6" Dist. 1996): Drvden, 135 Ohio App.3d at 400; Dovle v. Fairfield
Mach. Co., Inc., 120 Ohio App.3d 192, 215-17, 697 N.E.2d 667 (11"
Dist. 1997). Moreover, a plaintiff may prove tortious interference with
an employment relationship even where no contract exists. See Dove,
120 Ohio App.3d at 215-17. Craig has clearly alleged tortious

interference with the employment relationship between himself and

19

justification for the interference and; (5) resulting
damages. Fred Siegel Co., L.P.A. v. Arter & Hadden,
85 Ohio St.3d 171, 176, 707 N.E.2d 853 (1999).

To state a claim for civil conspiracy under
state tort law, a plaintiff must show the existence of:
(1) a malicious combination: (2) of two or more
persons; (3) to injure another in person or property;
(4) in a way not competent for one alone: (5) which
results in actual damages. Laurel Valley Oll, 154
Ohio App.3d at 520.

None of the elements of these claims turns on
the meaning of CBA terms. Rather, these elements
are products of purely factual inquiries, such as the
actions taken by Respondents, the motives
underlying those actions, and the underlying factual
circumstances.

Several courts of appeals confirm that the
LMRA does not preempt defamation and tortious
interference with employment claims. See, e.g.,
Lopez v. Fox Television Animation, Inc., 76 Fed.
Appx. 769 (9t Cir. 2003) (court held that the LMRA
did not preempt a terminated employee’s defamation
claim against his employer); Dashields v. Robertson,
2000 U.S. App. LEXIS 9533 (4 Cir. 2000) (court
held that the LMRA did not preempt a unionized
employee’s defamation and tortious interference
claims against several coworkers): Meyer v.
Schnucks Markets, Inc., 163 F.3d 1048 (8 Cir.
1998) (court held that the LMRA did not preempt a
unionized employee’s defamation and _ tortious

Riser. (FAC €963-74).

interference claims against a coworker and
employer); Graham v. Contract Transp., Inc., 220
F.3d 910 (8th Cir. 2000) (defamation claims not
preempted); Gay v. Carlson, 60 F.3d 83 (2d Cir.
1995) (court found that a terminated employee's
defamation and civil conspiracy claims against
several coworkers arose from state law rights and
did not require interpretation of a CBA); see also
Dryden, 135 Ohio App.3d at 399-403 (holding that
the LMRA did not preempt a terminated employee's
defamation or tortious interference claims against
former coworkers). In holding the LMRA to preempt
Craig’s defamation and tortious interference claims,
the Sixth Circuit enters into a direct conflict with
decisions of its sister circuits in addition to conflict
with this Court.

Despite the Sixth Circuit’s suggestion
otherwise, not only has an arbitrator never decided
the above claims against Respondents herein, but
empowered her to do so. There is no evidence of a
CBA involved here that contains a procedure for
remedying torts committed by members of UFCW
against co-members of the same, nor is there
evidence of a procedure for remedying Riser’s
ratification of intentional torts by its employees.*
Moreover, even if a CBA _ provided for such
procedures, a CBA may not be the "only source” of an
employee’s rights in the workplace. Hawaian
Airlines, 512 U.S. at 258-62. State law may place

* Again, this Court should remain mindful that the LMRA applies only to
CBA disputes between labor unions and employers. 29 U.S.C. § 185.

S

21

additional, separate rights and duties upon those
involved in a collective-bargaining relationship and
this Court has consistently rejected the notion that
an individual may not vindicate these separate and
independent rights in state court where he has an
alternative remedy available under a CBA. See, e.g.,
Hawaiian Airlines, 512 U.S. at 257-66; Lingle, 486
U.S. at 407-13.

In Hawauan Airlines, for example, Hawaii law
placed an additional and separate duty on the
defendant employer to not discharge its employees in
violation of public policy. 512 U.S. at 258-62.
Likewise, Ohio places a separate body of rights and
duties on those within its territorial limits that a
CBA may not impede or diminish. Here, Craig had a
state law right to be free from defamation, to not
have his employment/contractual relationship
tortiously interfered with by others, and a right to
not be tortiously conspired against. Respondents
herein had a corresponding duty under state law to
not defame, to not tortiously interfere, to not ratify
theortious conduct of another, and to not engage in
a civil conspiracy to tortiously injure another.

In rendering its decision below, the Sixth
Circuit lost sight of the separate body of rights Ohio
grants to those within its boundaries. The Sixth
Circuithas lost sight of the independent nature of
such rights for some time now with respect to
defamation and tortious interference claims. For

example, in DeCoe, supra, one of the most
consistently cited cases in the Sixth Circuit with
respect to LMRA preemption, the Sixth Circuit held

that the LMRA preempted an employee's defamation
and tortious interference claims against his
employer and several co-workers for allegedly falsely
accusing him of committing sexual harassment upon
several co-workers. /d. at 214-15. Even though the
face of the plaintiffs complaint made no indication
that the plaintiff based his claims on a CBA,® the
DeCoe court delve into a CBA to locate terms that
the defendant might have raised as a defense, or

that might have required interpretation if the
plaintiff had pled his claims differently, to determine
if a court could resolve the claims’ without
interpreting CBA terms. The impact of the DeCoe
decision has been widespread, encouraging district
courts to automatically hold defamation and tortious
interference claims as preempted without regard to

CBA terms or the independent nature of such
claims. For example, the district court below
concluded: "in...[DeCoel...the discharged...[plaintiff]
raised claims such as defamation, land] tortuous
interference... The Sixth Circuit upheld the finding
of preemption in...[that case]; the provisions of the
LMRA must likewise’ govern the resolution
of...[(Craig's] claims". (Order Awarding Summary
Judgment at 6, District Court Docket Items 50-51).

"See Appendix at !3.

” The widespread impact is especially significant when considering that
only the Ninth Circuit surpasses the Sixth Circuit in the number of cases
involving the LMRA. Administrative Office of the United States Courts,
2006 Annual Report of the Director, Table B-7.

23

The Sixth Circuit’s decision in the case sub
judice and DeCoe are neither anomalies within the
Circuit nor anomalies among the several other
circuits. See, e.g., Campbell v. Kane, Kessler, P.C.,
144 Fed. Appx. 127 (2d Cir. 2005); Shiflett v. L.T.O.
Corp. of Baltimore, 202 F.3d 260 (4th Cir. 2000);
Papa v. Truland Systems Corp., 162 F.3d 1155 (4th
Cir. 1998); Kern v. Dannon Co., Inc., 71 Fed. Appx.
442 (5th Cir. 2003); Collins v. Bradley, 122 F.3d
1067 (5th Cir. 1997); Potts v. Wilson, 54 Fed. Appx.
190 (6 Cir. 2002); Rafig v. A.H. Belo Corp., 203 F.3d
832 (9th Cir. 1999) (holding defamation claims
preempted); Turner v. American Fed. of Teachers
Local 1565, 138 F.3d 878 (11th Cir. 1998) (holding
tortious interference claim as preempted); but see
cases cited supra.

The much of the conflict between the decisions
in the above cases arises from the construction of
conclusions rather than application of facts to an
exacting legal test. More than thirteen (13) years
ago, in the last decision this Court rendered that
discussed LMRA preemption in any significant
detail, this Court acknowledged the lack of
uniformity among the circuits in their application of
the principles this Court set forth in Lingle and
Allis-Chambers. See Livadas, 512 U.S. at 124 n. 18.
There, this Court determined that the facts of that
case did not render the matter a fit occasion to
resolve the conflict among the circuits with respect
to LMRA preemption because, there, non-
preemption by the LMRA was “clear beyond
peradventure’. /d. Petitioner submits that the case

sub judice presents a fit occasion for this Court to
resolve the continuing chaotic conflict between and
within the circuits and to correct the numerous
decisions conflicting with this Court through the
adoption of a more definitive test for LMRA
preemption. !9

Il. THE SIXTH CIRCUITS CONCLUSION
THAT “EXAMINING THE EXISTENCE AND
(POTENTIALLY) THE SEVERITY” OF THE
HARM OF DISCHARGE WILL “REQUIRE
THE COURT TO EVALUATE THE
PARAMETERS FOR PROPER AND
IMPROPER DISCHARGE” UNDER A CBA
AND, THEREBY, GIVE RISE TO LMRA
PREEMPTION DIRECTLY CONFLICTS
WITH THIS COURT’S PRIOR DECISIONS
AND THIS COURT SHOULD, THEREFORE,
GRANT CERTIORARI TO RESOLVE THE
CONFLICT.

In arriving at its decision in the case sub
jJudice, the Sixth Circuit not only completely
misstates the facts in asserting that all of Craig’s
tort claims allege harm of demotion and discharge
(Order at 1), but then goes on to formulate a legal
conclusion that directly conflicts with this Court’s

10 oe . . . . . ‘
The cases cited immediately above represent cases decided since this

Court's decision in Livadas.

prior holdings under any set of facts.!! According to
the Sixth Circuit, as part of its justification in
holding Craig’s claims as preempted by the LMRA,
“examining the existence and (potentially) the
severity” of the harm of discharge will “require the
court to evaluate the parameters for proper and
improper discharge” under a CBA and, thereby, give
rise to LMRA preemption. (Order at 4). However,
this Court has repeatedly rejected the Sixth Circuit’s
conclusion that an allegation in a complaint of harm
of termination of unionized employment requires an
evaluation of the parameters for proper and
improper discharge under a CBA. See e.g,
Hawaiian Airlines, 512 U.S. at 266 (the Court
rejected the notion that examining the existence of
discharge requires interpretation of a CBA and
found that the existence of discharge was a “purely
factual question,” citing Lingle, 486 U.S. at 407).
This Court has likewise rejected the notion
that determining the severity of harm caused by
discharge from employment (i.e., value of lost wages
caused by the event of discharge) requires
interpretation of a CBA sufficient to cause
preemption by the LMRA. Livadas, 512 U.S. at 124-
25 (“when liability is governed by independent state
law, the mere need to ‘look to’ the [CBA] for damages
computation is no reason to hold the state-law claim

'' On review of the FAC. though. only the tortious interference and civi!
conspiracy claims (counts 10-14 of the FAC) allege harm of demotion
and discharge. Contrary to the assertions of the lower courts, none of

Craig's libel and slander claims alleges such harm.

26

defeated by [the LMRA]”); Lingle, 486 U.S. at 413
n.12 (although federal law would govern any
interpretation of CBA terms when calculating the
damages due on an employee's state-law claim, the
underlying state-law claim would stand).

Although Craig's tortious interference with
employment and civil conspiracy claims allege
damages that include discharge from employment,
Craig seeks monetary damages for these claims
rather than remedies under a CBA, such as
reinstatement of employment. Craig makes no
statement in his FAC that Riser improperly
terminated his employment under a CBA. Moreover,
this Court’s decisions in cases such as Lingle, supra,
and Hawatian Airlines, supra, involving employees
who brought actions in state court against their
former employers for wrongful discharge based on
state law,!2 support the notion that federal labor law
entitles a jury to find that improper/tortious motive
under state law resulted in discharge irrespective of
whether an employer was justified under a CBA in
discharging an employee. These decisions further
demonstrate the fallacy of the Sixth Circuit's
assertion that Craig’s allegation of harm from
demotion and discharge causes the LMRA to
preempt his claims and further demonstrate the
need to correct the Sixth Circuit’s decision in the

'? While Hawaiian Airlines involved the Railway Labor Act rather than

the LMRA, the Court explicitly adopted the preemption standard for the

LMRA sect forth in Lingle for determining preemption under the Railway
Labor Act. 512 U.S. at 261-66.

case sub judice.'8

Il. THE SIXTH CIRCUITS CONCLUSION
THAT EVALUATION OF RESPONDENTS’
IMPROPER MOTIVE OF ATTEMPTING TO
“OBTAIN A MORE LAX WORKING
ENVIRONMENT FOR JOHN M.
BRIGADIER’ WILL REQUIRE THE COURT
TO ASSESS THE PARAMETERS OF THE
CURRENT WORKING ENVIRONMENT
AND THE FUNCTIONING OF VARIOUS
GRIEVANCE PROCEDURES” UNDER A
CBA AND, THEREFORE, RESULT IN LMRA
PREEMPTION OF ALL OF _ CRAIG’S
CLAIMS DIRECTLY CONFLICTS WITH
THIS COURTS PRIOR DECISIONS AND
THIS COURT SHOULD, THEREFORE,
GRANT CERTIORARI TO RESOLVE THE
CONFLICT.

In holding the LMRA to preempt Craig’s
claims, the Sixth Circuit enters into another direct
conflict with this Court’s prior decisions. Referring
to Craig’s statement in his FAC that John M.
Brigadier’s, Sue M. Brigadier’s, and David L.

~ If the Sixth Circuit's assertion were true, then the LMRA would have
also preempted the claims involved in Lingle and Hawaiian Airlines
because. as the claims in those cases were “wrongful discharge” claims,

an allegation of harm from discharge would have been essential to the

claims.

Brigadier’s motive for tortiously interfering with the
employment relationship between Craig and Riser
was to “obtain a more lax working environment” for
John M. Brigadier, the Sixth Circuit concludes that
proof of this motive would “require the court to
assess the parameters of the current working
environment and the functioning of various
grievance procedures” created by a CBA. (Order at
4). However, the Sixth Circuit’s conclusion is
erroneous because such an assessment of the actual
conditions of the working environment and the
functioning of grievance procedures for resolution of
disputes between Riser and union members would be
irrelevant to establishing the existence of the
improper motive.!4 In fact, this Court has repeated)
said that showing the existence of an improper
motive is a factual inquiry and does not require
interpretation of a CBA. Hawauan Airlines, 512 U.S.
at 261-66; Lingle, 486 U.S. at 407-13.'> Accordingly,

'* Again, just as the libel and slander claims fail to allege harm of
discharge, the libel and slander claims in the FAC also fail to contain the

“obtain a more lax working environment” statement.

'* In both Hawaiian Airlines and Lingle, the plaintiffs alleged improper
motive of the defendants in their complaints for wrongful discharge
against the defendants. In Ohio, presumably like Hawaii and Illinois, a
complaint for wrongful discharge in violation of public policy must
contain an allegation of improper motive. See, e.g.. Lewis v. Fairview
Hosp.. 156 Ohio App.3d 387, 391-92, 806 N.E.2d 185 (8" Dist. 2004)
(indicating that a plaintiff must demonstrate improper motive for a
wrongful discharge claim under state tort 'aw); see also Fred Siege/, 85

Ohio St.3d at 171-79 (indicating that a plaintiff must demonstrate the

29

this Court should grant certiorari to resolve this
clear conflict.

IV. THE SIXTH CIRCUITS DECISION
HOLDING THAT THE LMRA PREEMPTED
CRAIG’S CLAIMS AGAINST PERSONS
WHO HAD NO RELATIONSHIP WITH
UCFW NOR RISER WHATSOEVER IS
PATENTLY CONTRARY TO THE
LANGUAGE OF THE LMRA,
INTERPRETATION OF THE LMRA BY THIS
COURT AND OTHER CIRCUITS, AND
FUNDAMENTAL CONCEPTS OF
CONTRACT LAW, AND THIS COURT
SHOULD, ACCORDINGLY, GRANT
CERTIORARI TO CORRECT THE SAME.

The notion that the LMRA cannot preempt a
claim against a defendant where the defendant is
not a party to a CBA should not come as a difficult
concept. After all, the LMRA applies only to “[s]uits
for violation of contracts between an employer and a
labor organization,’ and one cannot breach an
agreement that does not bind him/her. 29 U.S.C. §
185 (emphasis added); Jnt7 Union, United Mine
Workers of America v. Covenant Coal Corp., 977
F.2d 895, 897-98 (4 Cir. 1992). Accordingly, logic
dictates and several circuit courts have held that

existence of an unjustifiable motive for tortious interference with a

contractual relationship claim under state tort law).

30

federal courts do not have jurisdiction under the
LMRA to entertain claims against persons who are
not parties to a CBA. Covenant Coal Corp., 977 F.2d
at 897.

Here, Craig set forth several state law tort
claims against Sue M. Brigadier and David L.
Brigadier separately from claims against any of the
other Respondents in this action.'6 Respondents do
not dispute that neither Sue M. Brigadier nor David
L. Brigadier had any form of employment, business,
or contractual relationship with _ Riser.!
Consequently, the Sixth Circuit could not have
legally nor logically construed the LMRA to preempt
the claims asserted against Sue M. Brigadier and
David L. Brigadier in the FAC. In construing the
LMRA to preempt Craig’s claims against Sue M.
Brigadier and David L. Brigadier, the Sixth Circuit
has entered into direct conflict with doctrine of this
Court and decisions of other circuits that necessarily
requires resolution by this Court.

' See Counts 2, 3. and 11 of the FAC.

'” See Defendants’ Amended Answer to Plaintiff's First’ Amended
Complaint at ©68 (admitting that neither Sue M. Brigadier nor David L.
Brigadier had any form of employment, business, or contractual

relationship with Riser).

3]

V. THE STANDING POLICY OF THE SIXTH
CIRCUIT AND SEVERAL OTHER
CIRCUITS OF DENYING ORAL
ARGUMENT TO PRO SE LITIGANTS RUNS
AFOUL OF 28 U.S.C. § 1654, FED. R. APP. P.
34(a), PRIOR DECISION OF THIS AND
OTHER COURTS, THE NOTION OF
EQUALITY UNDER THE LAW, EQUAL
ACCESS TO THE COURTS, AND
CONFLICTS WITH OTHER CIRCUITS’
IMPLEMENTATION OF FED. R. APP. P.
84(a) SUCH THAT THIS COURT SHOULD
GRANT CERTIORARI TO CORRECT THE
SAME.

Of separate, but no less significant, concern in
the case sub judice is the Sixth Circuit’s denial of the
Parties’ request for oral argument. At issue here are
28 U.S.C. § 1654, Fed. R. App. P. 34(a)(2), and the
Sixth Circuit’s consistent practice of prohibiting oral
argument in cases involving pro se litigants.

Deeply rooted in the history of this republic
and expressed in 28 U.S.C. § 1654 is the notion that
a litigant may personally conduct his own case in
court. Faretta v. California, 422 U.S. 806, 830 n.39
(1975); O'Reilly v. New York Times Co., 692 F.2d
863, 867 (2d Cir. 1982). 28 U.S.C. § 1654, entitled
“Appearance personally or by counsel,” provides: “In
all courts of the United States the parties may plead
and conduct their own cases personally or by counsel
as, by the rules of such courts, respectively, are
permitted to manage and conduct causes therein.”
The Federal Rules of Appellate Procedure further

32

acknowledge self-representation in the United States
Courts of Appeals. See, e.g., Fed. R. App. P. 3(c)(2)
and (d)(1).

Found within the right of self-representation
is the general right of litigants to orally present their
own cases to courts on appeal. 7inda// v. Poultney
High Sch. Dist., 414 F.3d 281, 286 (2d Cir. 2005).
Fed. R. App. P. 34(a)(2) supports this general right
and provides:

Standards. Oral argument must be

allowed in every case unless a panel of

three judges who have examined the

briefs and record unanimously agrees

that oral argument is unnecessary for
any of the following reasons:

(A) the appeal is frivolous:

(B) the dispositive issue or issues
have been authoritatively decided: or

(C) the facts and legal arguments are
adequately presented in the briefs and
record, and the decisional process would
not be significantly aided by oral
argument.

Fed. R. App. P. 34(b) further provides: “Notice of
Argument; Postponement. The clerk must advise all
parties whether oral argument will be scheduled,
and, if so, the date, time, and place for it, and the
time allowed for each side. [...]” (emphasis added).
As noted in the facts above, all Parties in the
case sub judice properly requested oral argument

33

pursuant to Sixth Circuit Rule 34(a). However, as
also indicated above, the clerk of the Sixth Circuit
failed to advise the Parties “whether oral argument
[would] be scheduled” as required by Fed. R. App. P.
34(b). Craig did not learn that the Sixth Circuit
would not permit him oral argument until the court
stated the same in its decision affirming the decision
of the District Court.

As Craig noted in his request for oral
argument, made pursuant to Sixth Circuit Rule
34(a), “the existence of federal subject matter
jurisdiction in the wake of an allegation of LMRA
preemption is an exceedingly complex area of the
law,” especially deserving of oral advocacy. (Brief of
Plaintiff-Appellant, Appendix ‘A’) (citing Farmer v.
United Brotherhood of Carpenters & Joiners of
America, Local 25, 430 U.S. 290, 295-96 (1977);
Lydon v. Boston Sand & Gravel Co., 175 F.3d 6, 10
(1st Cir. 1999); Foy v. Pratt & Whitney Group, 127
F.3d 229, 233 (2d Cir. 1997); Wilds v. UPS, Inc., 262
F. Supp. 2d 163, 184-85 (S.D.N.Y. 2003)). At least
one court of appeals has described the LMRA
preemption inquiry as “one of the most confused
areas of federal court litigation”. See Ga/vez v. Kuhn,
933 F.3d 773, 776 (9 Cir. 1991) (citing Note, The
Need for a New Approach to Federal Preemption of
Union Members’ State Law Claims, 99 Yale L.J. 209,
209 (1989)). Craig requested oral argument in
particular to “elaborate on the summary of his
position...clarify whatever questions [the Sixth
Circuit) may have with respect to _ his
contentions...[and) clear up any _ lingering

misconceptions with respect to [his] claims...”. (Brief
of Plaintiff-Appellant, Appendix ‘A’). On review of
th practices of the Sixth Circuit, though, it is all but
certain that the Sixth Circuit would not have
permitted Craig to orally argue his case under any
set of circumstances.

Although Fed. R. App. P. 34(a) makes no
distinction between represented litigants and those
appearing pro se, and even though Congress has
evidenced its intent to eliminate any such distinction
through enactment of 28 U.S.C. § 1654, the Sixth
Circuit has consistently differentiated between cases
involving pro se litigants and those where no party is
pro se. The Administrative Office of the United
States Gourts reports that seven hundred fifty-one
(751) private party civil cases terminated on the
merits in the Sixth Circuit Court of Appeals between
April 1, 2005, and March 31, 2006.'8 The vast
majority of these cases, four hundred ninety-six
(496), terminated following oral argument and two
hundred fifty-five (255) of the cases terminated
following submission on the _briefs.!9 Upon
investigation, Craig has discovered that, of the (751)
private party civil cases terminating on the merits,

“ Administrative Office of the United States Courts, 2006 Federal
Judicial Caseload Statistics, Table B-1. Craig used this time period for
demonstrative purposes and has no reason to believe that the Sixth
Circuit has been more receptive to oral argument in cases involving pro

se litigants during any other me period.

a

35

only eighty-five (85) of the cases terminated
following the Sixth Circuit’s denial of oral argument
pursuant to Sixth Circuit Rule 34().2° Of the eighty-
five (85) cases in which the Sixth Circuit refused to
hear oral argument, eighty-three (83) of the cases
involved pro se litigants.2! In fact, Craig has
uncovered only a single instance in the referenced
year where the Sixth Circuit heard oral argument in
a case involving a pro se litigant.22 Craig has
uncovered no cases in which the Sixth Circuit denied
oral argument where all parties indicated a desire
for oral argument and where all parties had obtained
counsel.

In many of the cases where the Sixth Circuit

*” See Appendix at 31. Sixth Circuit Rule 34(j) is similar to Fed. R. App.
P. 34(a) except that it liberalizes the court's ability to deny oral argument
in cases beyond that permitted by Fed. R. App. P. 34(a). Whereas Fed.
R. App. P. 34(a) states that oral argument “must be allowed in every case
unless a panel of three judges who have examined the briefs and record
unanimously agrees that oral argument is unnecessary” for one of three
(3) specified reasons, Sixth Circuit Rule 34(j)(1) permits the aforesaid
panel to deny oral argument without the requirement of finding one of the
three (3) specified reasons and Sixth Circuit Rule 34(j)(2) merely states
that oral argument will “ordinarily” be allowed unless someone (the rule
does not specify who) finds that one of the three (3) specified reasons

applies. (emphasis added).

“' Jd. In the two cases not involving pro se litigants, one or both of the
parties expressed a desire that the court not hold oral argument. See Sixth

Circuit docket numbers 04-3304 and 04-6120.

-- See Sixth Circuit docket number 05-1155.

36

denied oral argument to pro se litigants, the Sixth
Circuit based its denial on Sixth Circuit Rule
34(j)(2)(C), which states that “[t]he facts and legal
arguments are adequately presented in the briefs
and record, and the decisional process would not be
significantly aided by oral argument”.23 Sixth
Circuit Rule 34(h)(1) states that oral argument
“should undertake to emphasize and clarify the
written argument appearing in the briefs”. Pro se
litigants are precisely those persons who are most
unlikely to adequately present the facts and legal
arguments in their briefs and are the persons most
likely to benefit from an opportunity to emphasize
and clarify the written arguments appearing in their

briefs. Thus, true application of the standards set
forth by Fed. R. App. P. 34(a) and Sixth Circuit Rule

34G)(2)C) would reveal that the vast majority of
private civil cases terminating after oral argument
involved pro se litigants. However, the statistics
reveal but a disingenuous application.

Aside from the raw numbers, Sixth Circuit
Internal Operating Procedure Rule 34(c) evidences a
general exclusion of pro se litigants from the oral

argument process.24_ The Sixth Circuit is not alone

* In the case sub judice, the Sixth Circuit denied oral argument pursuant
to Sixth Circuit Rule 34(j)(1) and completely failed to indicate which of
the three (3) permissible reasons set forth in Fed. R. App. P. 34(a) it

relied upon in denying oral argument.

4 > . : - ” :
™ Here, the Sixth Circuit refers exclusively to “counsel” instead of the

term “party.” as used throughout the Sixth Circuit's other rules.

37

in its refusal to afford the same consideration to pro
se litigants as it does those with counsel. For
example, Fourth Circuit Rule 46(f) states that
“[clases involving pro se litigants are ordinarily not
scheduled for oral argument” despite Fed. R. App. P.
34(a)’s requirement that all cases proceed to oral
argument “unless a panel of three judges who have
examined the briefs and record unanimously agrees
that oral argument is unnecessary” for one of three
(3) specified reasons. Rather than requiring “a panel
of three judges who have examined the briefs and
record” to unanimously agree that “oral argument is
unnecessary,” as set forth by Fed. R. App. P. 34(a),
Eight Circuit Rule 34(A) permits a clerk or senior
staff attorney to screen out cases for disposition
without oral argument. In contrast, the Second
Circuit has expressly embraced oral argument by pro
se litigants. See Tindall, 414 F.3d at 286; Second
Circuit Rule 34 (expressly providing each pro se
litigant an opportunity to elect to orally argue the
case and granting all parties an opportunity to
request reconsideration of a panel’s unanimous sua
sponte decision not to hear oral argument in
accordance with Fed. R. App. P. 34(a)).25

The hard numbers and facts are impossible to
ignore and readily evidence disparate treatment
toward those who cannot afford counsel or who
choose to not hire counsel when attempting to

-“ Second Circuit Rule 34 has some room for correction, though, because
it still affords lesser deference to cases involving pro se litigants by

lessening the time for oral argument in those cases.

38

resolve disputes through the judicial system. The
very same panel deciding the case below has
described oral argument as a “benefit”.26 Had the
Sixth Circuit afforded Craig the same benefit that it
would have afforded him had his name not carried
the pro se label, the court may have been less
inclined to “rubber stamp” the District Court’s
decision below and all of the factual and legal errors
contained therein.

Craig submits that the practice of the Sixth
Circuit and other circuits of allowing oral argument
“only for attorneys,” as Craig recalls the case
manager saying when discussing oral argument not
long after filing his Notice of Appeal below, is unjust,
defies the express policy set forth by Congress, defies
the policy set forth in the Federal Rules of Appellate
Procedure, and conflicts with the policies of other
circuits in implementing the aforesaid Federal
Rules. Accordingly, Craig respectfully requests that
this Court grant certiorari so that the process of
washing away this scarlet letter wrongfully imposed
upon litigants without an attorney may begin.

“* See Zbuka v. Marathon Ashland Petroleum, LLC. No. 06-4314, p. 2
(6"" Cir. June 25, 2007).

Respectfully submitted,

LEONARD EHRENREICH
Counsel of Record

Ehrenreich & Associates

526 Superior Avenue, Suite 1130
Cleveland, Ohio 44114

(216) 861-1070

40)

APPENDIX

Case No: 06-3607

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ORDER

MATTHEW A. CRAIG

FILED

JUL 10 2007

LEONARD GREEN, Clerk

Plaintiff - Appellant

JOHN BRIGADIER; SUE M. BRIGADIER; DAVID
L. BRIGADIER; JACQUELYN F. LENSON: RISER
FOODS COMPANY, d/b/a Giant Eagle, Inc.

Defendants — Appellees

BEFORE: GILMAN, GIBBONS and GRIFFIN,
Circuit Judges.

Upon consideration of appellant's motion to file
instanter the petition for panel rehearing,

It is ORDERED that the motion be and hereby
is GRANTED.

And after further consideration of the petition
for rehearing filed by appellant,

Appendix - 1

It is ORDERED that the petition for rehearing
be, and it hereby is, DENIED.

ENTERED BY ORDER OF THE COURT
Is
Leonard Green, Clerk

Appendix - 2

NOT RECOMMENDED
FOR FULL-TEXT PUBLICATION

No. 06-3607

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
JUN 04 2007
LEONARD GREEN, Clerk

MATTHEW A. ) ON APPEAL FROM THE
CRAIG, ) UNITED STATES
Plaintiff-Appellant, ) DISTRICT COURT FOR
) THE NORTHERN
v. ) DISTRICT OF OHIO
)
ORDER

Before: GILMAN, GIBBONS, and GRIFFIN,
Circuit Judges.

Matthew A. Craig appeals pro se a district
court judgment that dismissed his civil action, which
was removed from an Ohio state court pursuant to 28
U.S.C. §1441. This case has been referred to a panel
of the court pursuant to Rule 34G)(I), Rules of the
Sixth Circuit. Upon examination, this panel
unanimously agrees that oral argument is_ not

Appendix - 3

needed. Fed. R. App. P. 34(a).

Craig originally filed this civil action in the
Cuyahoga County Court of Common Pleas contesting
the outcome of a dispute he had with his former
employer, Riser Foods Company, d/b/a Giant Eagle,
Inc. (Giant Eagle). Essentially, Craig asserted claims
of defamation, slander, libel, conspiracy, and tortious
interference with contract - torts which allegedly
caused him harm in that they resulted in
his demotion and termination as a Giant Eagle
employee. The defendants alleged federal jurisdiction
over Craig's claims under the Labor Management
Relations Act (LMRA), 29 U.S.C. § 158(a), and
removed the case to the United States District Court
for the Northern District of Ohio. Craig's subsequent
motion to remand the case to the state court was
denied after the district court found that Craig's
claims were properly read as claims for improper
discipline and

No. 06-3607
° 2? «

discharge under the collective bargaining agreement
(CBA), and thus pre-empted under § 301 of the
LMRA.

Thereafter, Giant Eagle filed a motion for
summary judgment which the district court granted.
In so ruling, the district court found that Craig's
claims were preempted by § 301 of the LMRA, and
that the arbitrator's finding that Giant Eagle
properly terminated Craig for insubordination under

Appendix - 4

the terms ofthe CBA precluded judicial review. This
appeal followed.

Craig reasserts his argument that remand is
proper. Giant Eagle's removal was predicated upon
federal question jurisdiction in that Craig's claims
purportedly arose under § 301 of the LMRA, rather
than Ohio law. In reviewing the district court's denial
of Craig's motion to remand, this court looks to the
complaint at the time of removal, reviews the denial
of the motion to remand de novo, and determines
whether the action was properly removed in the first
place. See Ahearn v. Charter Twp. of Bloomfield, 100
F.3d 451,453 (6th Cir. 1996). "Removing defendants
bear the burden of establishing federal subject-
matter jurisdiction." Jd. at 453-54.

"Only state-court actions that originally could
have been filed in federal court may be removed to
federal court by the defendant." Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987). To be removable
based upon federal question jurisdiction, generally
the complaint must affirmatively allege a federal
claim. See Beneficial Nat'l Bank v. Anderson, 539
U.S. 1,6 (2003). Federal courts examine the well-
pleaded allegations of the complaint for a federal
question on its face, and ignore potential defenses,
id., "including the defense of pre-emption, even if the
defense is anticipated in the plaintiff s complaint,
and even if both parties concede that the federal
defense is the only question truly at issue."
Caterpillar, Inc., 482 U.S. at 393. Since a plaintiff is
the master of his complaint, see AmSouth Bank v.
Dale, 386 F.3d 763, 776 (6th Cir. 2004), where a

Appendix - 5

choice is made to assert only a state-law claim, the
general rule prohibits recharacterizing it as a federal
claim for removal purposes. See Metro. Life Ins. Co.
v. Taylor, 481 U.S. 58, 63 (1987). Federal jurisdiction
can therefore generally be avoided by relying
exclusively on state law. See Smolarek v. Chrysler
Corp., 879 F.2d 1326, 1329 (6th Cir. 1989) (en banc).

No. 06-3607
- 3 Pe

The face of Craig's complaint relies exclusively
upon Ohio law. However, one limited exception to the
general rule is "when a federal statute wholly
displaces the state-law cause of action through
complete pre-emption." Beneficial Nat] Bank, 539
U.S. at 8. This narrow exception to the well-pleaded
complaint rule, known as the "complete preemption"
doctrine, occurs where “Congress [has] so completely
preempt| ed] a particular area that any civil
complaint raising this select group of claims is
necessarily federal in character." Metro. Life, Ins. Co.
, 481 U.S. at 63-64. When Congress has indicated an
intent to completely occupy the field, any seemingly
state-law claim is in fact a federal claim for purposes
of federal question jurisdiction. Beneficial NatT
Bank, 539 U.S. at 9. "[A |ny claim purportedly based
on that pre-empted state law is considered, from its
inception, a federal claim, and therefore arises under
federal law." Caterpillar, Inc., 482 U.S. at 393: see
also Franchise Tax Bd. of Cal. v. Constr. Laborers
Vacation Trust for S.Cal, 463 U.S. 1,24 (1983)

Appendix - 6

(noting that "if a federal cause of action completely
pre-empts a state cause of actionl,] any complaint
that comes within the scope of the federal cause of
action necessarily ‘arises under’ federal law").

As the party invoking removal, Giant Eagle
relies upon the LMRA. Section 301 of the LMRA is a
statute under which the Supreme Court has
recognized complete preemption. See, e.g., Allis
Chalmers Corp. v. Lueck, 471 U.S. 202, 209-11 (1985)
(citing Local 174, Teamsters, Chauffeurs,
Warehouseman & Helpers of Am. v. Lucas Flour Co.,
369 U.S. 95, 103 (1962); Aveo Corp. v. Aero Lodge No.
735, Int’ Assoc. of Machinists & Aerospace Workers,
390 U.S. 557, 55961 (1968) (citing Textile Workers
Union of Am. v. Lincoln Mulls, 353 U.S. 448,456-57
(1957)). This court has noted that § 301 has an
unusually powerful preemptive force over a claim for
relief sought exclusively under state law. A/ongi v.
Ford Motor Co., 386 F.3d 716, 723-24 (citing
Beneficial Nat'l] Bank, 539 U3S. at 7).

Section 301 of the LMRA provides that "I[sluits
for a violation of contracts between an employer and
a labor organization representing employees ... may
be brought in any district court of the United States
having jurisdiction of the parties, without respect to
the amount in controversy or without regard to the
citizenship of the parties." 29 U.S.C. § 185(a). The
statute serves to

No. 06-3607
-4-

Appendix - 7

preempt state-law claims for what are in actuality
suits for violation of contracts between an employer
and a labor organization. Caterpillar, Inc., 482 U.S.
at 394.

To determine whether a state-law claim is
sufficiently "independent" to survive § 301
preemption, this court has adopted a_ two-step
inquiry. DeCoe v. Gen. Motors Corp., 32 F.3d 212,
216-17 (6th Cir. 1994). First, courts must determine
whether resolving the state-law claim would require
interpretation of the terms of the CBA. If so, the
claim is preempted. Second, courts must ascertain
whether the rights claimed by the plaintiff were
created by the CBA, or instead by state law. /d. at
216. If the rights were created by the CBA, the claim
is preempted. In short, if a state law claim fails ether
of these two requirements, it is preempted by § 301.

Using the approach established in DeCoe, we
conclude that preemption was warranted in this case
and that removal was proper. First, the resolution of
Craig's claims "will require a court to address
relationships that have been created through the
collective bargaining process and to mediate a
dispute founded upon right created by a CBA." /d. at
218 (quoting Jones v. Gen. Motors, Corp., 939 F.2d
380,382-83 (6th Cir. 1991). As stated by the district
court,

Craig complains of defamation, slander,
and libel- torts which allegedly caused
him harm in that they resulted in his
demotion and termination. Examining
the existence and (potentially) the

Appendix - 8

severity of this harm will evidently
require the court to evaluate the
parameters for proper and improper
discharge. Craig claims tortious
interference with his employment and
with his contractual relationship with
Giant Eagle (as well as conspiracy to
interfere). Evaluation of the defendants'
alleged attempts to "obtain a more lax
working ~~ environment" for John
Brigadier will require the court to assess
the parameters of the current working
environment and the functioning of
various Giant Eagle grievance
procedures, again as created. by the
CBA. As the second DeCoe criterion is
satisfied, preemption is clearly
warranted.

(May 23, 2005, Memorandum and Order at
unnumbered page 5).

Second, Craig asserts various wrongs alleged
to have caused his demotion and discharge. As
pointed out by the district court, "[Craig's]
termination resulted from a_ grievance process
established by a CBA, signed only by the parties
engaged in collective bargaining, and ended his
tenure at a job whose terms and conditions were
created by and subject to a CBA." (May 23, 2005,
Memorandum and Order at unnumbered pages 5-6).
Accordingly, removal was proper and remand was not
warranted.

No. 06-3607

“5°

Appendix - 9

This court reviews de novo a district court's
grant of summary judgment. See Harrow Prods., Inc.
v. Liberty Mut. Ins. Co., 64 F.3d 1015 (6th Cir. 1995).
Summary judgment is proper if there are no genuine
issues as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). In this case, the parties do not allege there
are any issues of material fact; therefore, the court
must consider whether the defendant is entitled to
judgment as a matter of law.

Upon review, we conclude that the district
court properly upheld the arbitrator's decision.
"[(Clourts must accord an arbitrator's decision
substantial deference because it is the arbitrator's
construction of the agreement, not the court's
construction, to which the parties have agreed."
Solvay Pharms., Inc. v. Duramed Pharms., Inc., 442
F.3d 471,476 (6th Cir. 2006) (citation and internal
quotation marks omitted): see also Michigan Family
Resources, Inc. v. Servo Employees Int'] Union, Local
517M, 475 F.3d 746,755 (6th Cir.*2007) (en banc)
(referring to “the exceedingly deferential task of
considering whether to vacate an arbitration award"),
pet. cert. filed, 75 U. S.L. W. 3598 (U.S. Apr. 26,
2007) (No. 06'-1435). “[C]lourts must refrain from
reversing an arbitrator simply because the court
disagrees with the result or believes the arbitrator
made a serious legal or factual error." Solvay, 442
F.3d at 476 (quoting United Paperworkers Int']
Union v. Misco, Inc., 484 U.S. 29, 38 (1987)): see also
Michigan Family Resources, 475 F.3d at 748 (en
banc) ("[Blecause the company has shown no more

Appendix - 10

than that the arbitrator made an error, perhaps even
a ‘serious error,’ 1n interpreting the contract, we ...
direct the district court to enter an order enforcing
the award.") (citing Misco, 484 U.S. at 38-39).

If the arbitrator's award "draws its essence
from the ... agreement," and is not merely the
arbitrator's “own brand of industrial justice," the
award is legitimate. So/vay, 442 F.3d at 476 (quoting
United Steelworkers of Am. v. Enter. Wheel & Car.
Co., 363 U.S. 593, 597 (1960)). As this court recently
explained, the Supreme Court's decisions in Misco,
484 U.S. 29 (1987) and Major League Baseball
Players Ass 'nV. Garvey, 532 U.S. 504 (2001)

define the line between a permissible
award (that "draws its essence from the
contract") and an impermissible award
(that "simply reflects the arbitrator's
own notionl] of industrial justice) based
on whether the arbitrator "is even
arguably construing or applying the
contract and acting within the scope of
his authority."

No. 06-3607
. 6 «

Misco, 484 U.S. at 38 ... | see Garvey,
532 U.S. at 509 ....*** In both cases, the
[Supreme] Court held that once it was
established that the arbitrator was
construing or applying the contract (and
acting within the scope of his authority),
it made no difference whether the

Appendix - 11

arbitrator had committed "serious,"
"iImprovident," or even "silly" errors in
resolving the merits of the dispute.
Misco, 484 U.S. at 38-39 ... ; Garvey, 532
U.S. at 509-10...

Michigan Family Resources, 475 F.3d at 752-53 (en
bane).

Craig does not challenge the validity of the
arbitration process on appeal. Nevertheless, we have
examined the arbitrator's decision and, in light of the
deference we must give to such decisions, conclude
that the decision is drawn from the essence of the
CBA. The arbitrator was charged with deciding
whether Giant Eagle had just cause to discharge
Craig. To do so, she had to evaluate Craig's particular
conduct and determine whether that conduct fell
within the’CBA's discharge provision. The arbitrator
duly executed her authority under the CBA and did
not dispense her own brand of industrial justice so as
to overcome the deferential standard of review
afforded arbitration awards. /d.

Accordingly, the district court's judgment is
affirmed. Rule 34())(2(C), Rules of the Sixth Circuit.

ENTERED BY ORDER OF THE COURT
Is
Leonard Green, Clerk

Appendix - 12

IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

Matthew A. Craig
11325 Cheyenne Trail
Suite 302

Parma Heights, OH
44130,

Plaintiff

John M. Brigadier
6002 Bradley Avenue
Parma, OH 44129

Sue M. Brigadier
6002 Bradley Avenue
Parma, OH 44129

David L. Brigadier
6002 Bradley Avenue
Parma, OH 44129

1533 Spring Garden

Avenue Lakewood, OH

44107

Riser Foods Company
d/b/a Giant Eagle, Inc.
5300 Richmond Road

No.: CV04536338

JUDGE:

Jose’ A. Villanueva

)

)

)

)

)

)

)

)

)

)

)

) FIRST AMENDED
) COMPLAINT WITH
) JURY DEMAND

) ENDORSED HEREON
)

)

)

)

)

)

)

)

)

)

)

)

)

)

Appendix - 13

Bedford Heights, OH
44146

John Doe

** Address To Be
Provided By
Amendment

Once True Name Is
**)

i i i ee a

Known

Defendants.

STATEMENT OF JURISDICTION

1. Plaintiff Matthew A. Craig, at all times stated
herein, has been and continues to be a resident of
Cuyahoga County, Ohio.

_ s Defendant John M. Brigadier, at all times
stated herein, has been and continuesto be a
resident of and employed in Cuyahoga County, Ohio.
3. Defendant Sue M. Brigadier, at all times
stated herein, has been and continues to be a
resident of Cuyahoga County, Ohio.

4. Defendant David L. Brigadier, at all times
stated herein, has been and continues t» be a
resident of Cuyahoga County, Ohio.

5. Defendant Jacquelyn F. Lenson (hereinafter
"Lenson”), at all times stated herein, has been and
continues to be a resident of and employed in
Cuyahoga County, Ohio.

6. Defendant Riser Foods Company, doing

Appendix - 14

business as Giant Eagle, Inc. (hereinafter “GE”), is a
for-profit corporation registered to conduct business
in the state of Ohio and operates multiple retail
stores throughout Cuyahoga County, Ohio.

7. Defendant John Doe, at all times stated
herein, has been and continues to be a resident of and
employed in Cuyahoga County, Ohio.

8, The causes of action, damages sustained, and
the events that occurred, originate in Cuyahoga
County, Ohio. This is a civil action for damages in
excess of $25,000.

9. None of the causes of action being alleged
hereunder are covered by or subject to the collective
bargaining agreement by and between Defendant GE
and United Food & Commercial Workers Union Local
No. 880, to which Plaintiff is a party.

FACTS COMMON TO ALL COUNTS
10. Plaintiff was hired by Defendant GE as a Part-
Time Grocery Clerk for its retail store #0185, located
at 6925 Southland Drive, Middleburg Heights, Ohio
(hereinafter “0185”), and began work on July 27,
20038.
11. Plaintiff was regularly employed by Defendant
GE at 0185 until his discharge on July 1, 2004.
12. Up until the time of his demotion on June 25,
2004, and subsequent discharge on July 1, 2004,
Plaintiff had never been subjected to disciplinary
action by Defendant GE.
13. During the term of his employ, Plaintiff
received several awards and pay increases for service

Appendix - 15

to Defendant GE beyond that which was required.

14. During the latter part of March, 2004, Plaintiff
was promoted to the “Manager in Charge” position
and regularly served as closing manager for 0185
until his demotion on June 25, 2004.

15. Plaintiff received a pay increase soon after and
corresponding to being promoted to the “Manager in
Charge” position.

16. Plaintiff is currently appealing his discharge
and other contractual violations which are subject to
the collective bargaining agreement by and between
Defendant GE and United Food & Commercial
Workers Union Local No. 880 pursuant to an
alternative dispute resolution process set forth in the
agreement.

COUNT 1

(Slander - John Brigadier)
17. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 16 as if fully rewritten herein.
18. Sometime after Plaintiff was hired by
Defendant GE, Defendant John Brigadier was hired
by Defendant GE to work at 0185.
19. Upon Plaintiff's promotion to “Manager in
Charge”, Defendant John Brigadier began working
under the direct supervision of Plaintiff on the days
of the week when both Plaintiff and Defendant John
Brigadier worked during the evening hours.
20. Plaintiff's authority over Defendant John
Brigadier and the other employees of 0185 was
limited to directing their work activities while

Appendix - 16

Plaintiff was actively serving as “Manager in
Charge”. The extent of Plaintiff's authority to
discipline employees was to send them home for the
remainder of their shift for insubordination. At no
time was Plaintiff given the authority to discharge,
change pay rates, or otherwise alter conditions of
employment for any of the employees at 0185.

21. Sometime before June 25, 2004, without any
provocation or notice to Plaintiff, Defendant John
Brigadier falsely and maliciously alleged to others
that Plaintiff had committed sexual harassment
against him, imputing moral turpitude and the
commission of a criminal offense in violation of
federal and state laws, including 42 U.S.C.A. § 2000e-
2(m) (West 2003) and section 4112.02 of the Ohio
Revised Code Annotated (West 2004), by Plaintiff.
22. The false and unprovoked allegations made by
Defendant John Brigadier, which were calculated to
injure Plaintiff's contractual relationship with
Defendant GE, have subjected Plaintiff to ridicule
and have caused Plaintiff to suffer personal
humiliation, mental anguish, and degradation of his
reputation.

23. Asa direct and proximate result of the
slanderous accusations made against Plaintiff by
Defendant John Brigadier, Plaintiff has suffered and
will continue to suffer personal, professional. and
financial injury.

Appendix - 17

COUNT 2

(Libel - Sue Brigadier and David Brigadier)
24. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 23 as if fully rewritten herein.
25. Among those to whom John Brigadier
published his defamatory remarks were his parents,
Defendants Sue Brigadier and David Brigadier.
26. Thereafter, without just cause or occasion,
Defendants Sue Brigadier and David Brigadier
jointly and severally perpetuated the slanderous
sexual harassment allegations made against Plaintiff
by Defendant John Brigadier by maliciously
publicizing the false allegations to others in written
form. Among those to whom Defendants Sue
Brigadier and David Brigadier published said
allegations were other employees of Defendant GE,
whereby Defendants Sue Brigadier and David
Brigadier also indicated their propensity to take legal
action against Defendant GE based on the
allegations.
27. At no previous time has Defendant Sue
Brigadier discussed amy matter with Plaintiff other
than to notify Plaintiff on a few occasions via
telephone that Defendant John Brigadier would not
be reporting to work as scheduled.
28. At no previous time has Defendant David
Brigadier communicated with Plaintiff in any form.
29. The false allegations made by Defendants Sue
Brigadier and David Brigadier. which have been
made in bad faith and which were calculated to
injure Plaintiff's contractual relationship with

Appendix - 18

Defendant GE, have subjected Plaintiff to ridicule
and have caused Plaintiff to suffer personal
humiliation, mental anguish, and degradation of his
reputation.

30. Asa direct and proximate result of the hbelous
accusations jointly and severally made against
Plaintiff by Defendants Sue Brigadier and David
Brigadier, Plaintiff has suffered and will continue to
suffer personal, professional, and financial injury.

COUNT 3

(Slander - Sue Brigadier and David Brigadier)
31. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 30 as if fully rewritten herein.
32. Without just cause or occasion, Defendants
Sue Brigadier and David Brigadier jointly and
severally perpetuated the false sexual harassment
allegations made against Plaintiff by Defendant John
Brigadier by maliciously continuing to publicize the
false allegations to others through verbal
communications.
33. The false allegations made by Defendants Sue
Brigadier and David Brigadier, which have been
made in bad faith and which were calculated to
injure Plaintiff's contractual relationship with
Defendant GE, have subjected Plaintiff to ridicule
and have caused Plaintiff to sffer personal
humiliation, mental anguish, and degradation of his
reputation.
34. Asa direct and proximate result of the

Appendix - 19

slanderous accusations made against Plaintiff by
Defendants Sue Brigadier and David Brigadier,
Plaintiff has suffered and will continue to suffer
personal, professional, and financial injury.

COUNT 4

(Libel - Lenson)
35. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 34 as if fully rewritten herein.
36. Of those to whom the defamatory sexual
harassment allegations made against Plaintiff by
Defendants John Brigadier, Sue Brigadier, and David
Brigadier were communicated, either directly or
indirectly, is Defendant Lenson.
37. Defendant Lenson is employed by Defendant
GE and at all times relevant herein has served as
Human Resources Manager for 0185.
38. Upon learning of the unsubstantiated
allegations made against Plaintiff by Defendants
John Brigadier, Sue Brigadier, and David Brigadier,
Defendant Lenson, while acting within the scope of
her employment, perpetuated the defamatory
allegations against Plaintiff by publicizing the false
allegations to others in written form.
39. Defendant Lenson maliciously perpetuated the
allegations made against Plaintiff by Defendants
John Brigadier, Sue Brigadier, and David Brigadier,
even though she knew or should have known that the
sexual harassment allegations were without merit.
40. The false allegations made and perpetuated by

Appendix - 20

Defendant Lenson, which she has caused to be widely
distributed and which were calculated by Defendant
Lenson to injure Plaintiff's contractual relationship
with Defendant GE, have subjected Plaintiff to
ridicule and have caused Plaintiff to suffer personal
humiliation, mental anguish, and degradation of his
reputation.

41. Asa direct and proximate result of the libelous
accusations made against Plaintiff by Defendant
Lenson, Plaintiff has suffered and will continue to
suffer personal, professional, and financial injury.

COUNT 5

(Slander - Lenson)
42. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 41 as if fully rewritten herein.
43. Upon learning of the unsubstantiated
allegations made against Plaintiff by Defendants
John Brigadier, Sue Brigadier, and David Agadier,
Defendant Lenson, while acting within the scope of
her employment, perpetuated the defamatory
allegations against Plaintiff by publicizing the false
allegations to others through verbal communications.
Publication by Defendant Lenson included directly
accusing Plaintiff of the crime of sexual harassment
in the presence of others.
44. Defendant Lenson maliciously perpetuated the
allegations made against Plaintiff by Defendants
John Brigadier, Sue Brigadier, and David Brigadier,
even though she knew or should have known that the

Appendix - 21

sexual harassment allegations were without merit.
45. The false allegations made and perpetuated by
Defendant Lenson, which she has caused to be widely
distributed and which were calculated by Defendant
Lenson to injure Plaintiffs contractual relationship
with Defendant GE, have subjected Plaintiff to
ridicule and have caused Plaintiff to suffer personal
humiliation, mental anguish, and degradation of his
reputation.

46. Asa direct and proximate result of the
slanderous accusations made against Plaintiff by
Defendant Lenson, Plaintiff has suffered and will
continue to suffer personal, professional, and
financial injury.

COUN7 6

(Slander - Lenson)
47. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 46 as if fully rewritten herein.
48. At or about the same time as making and
perpetuating the allegations set forth in Counts 4
and 5, Defendant Lenson falsely and maliciously
accused Plaintiff, in the presence of others, of having
committed criminal voyeurism, an act imputing
moral turpitude and the commission of a criminal]
offense in violation of section 2907.08 of the Ohio
Revised Code Annotated (West 2003) by Plaintiff.
49. The allegations of criminal voyeurism made by
Defendant Lenson., which were calculated to injure
Plaintiffs contractual relationship with Defendant

Appendix - 22

GE, have since been widely publicized and have
subjected Plaintiff to ridicule and have caused
Plaintiff to suffer personal humiliation, mental
anguish, and degradation of his reputation.

50. Asa direct and proximate result of the
slanderous accusations of criminal voyeurism made
against Plaintiff by Defendant Lenson, Plaintiff has
suffered and will continue to suffer personal,
professional, and financial injury.

COUNT 7

(Defamation - GE)
51. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 50 as if fully rewritten herein.
52. The libelous and slanderous allegations made
by Defendant Lenson, at all times herein stated, were
condoned and ratified by Defendant GE both
implicitly and expressly through the supportive
actions taken by other managerial employees of
Defendant GE.
53. The aforesaid allegations made by Defendant
Lenson, who serves in a managerial capacity, were
calculated to facilitate the business interests of her
employer, Defendant GE, by reducing the risk of a
lawsuit being brought against Defendant GE by
Defendants Sue Brigadier and David Brigadier.
54. Asa direct and proximate result of the false

accusations of moral and criminal misconduct made
and perpetuated by Defendant Lenson as set forth in
Counts 4 through 6, for which Defendant GE has

Appendix - 23

directly benefited, Plaintiff has suffered and will
continue to suffer personal, professional, and
financial injury for which Defendant GE is jointly
and severally responsible therefore.

COUNT 8

(Libel - John Doe)
55. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 54 as if fully rewritten herein.
56. Sometime before June 25, 2004, without any
provocation or notice to Plaintiff, Defendant John
Doe, an employee of Defendant GE whose true name
was not discoverable as of the time of pleading,
falsely and maliciously alleged to others in writing
that Plaintiff had ordered an employee under
eighteen years of age to operate hazardous machinery
in violation of federal and state laws including 29
C.F.R. § 570.63 (2004), section 4109.05 of the Ohio
Revised Code Annotated (West 2004), and section
4101:9-2-10 of the Ohio Administrative Code (2004).
57. The allegations of criminal misconduct made
by Defendant John Doe against Plaintiff, which were
calculated to injure Plaintiff's contractual
relationship with Defendant GE, have subjected
Plaintiff to ridicule and have caused Plaintiff to
suffer personal humiliation, mental anguish, and
degradation of his reputation.
58. Asa direct and proximate result of the libelous
accusations made against Plaintiff by Defendant
John Doe, Piaintiff has suffered and will continue to

Appendix - 24

suffer personal, professional, and financial injury.

COUNT 9

(Slander - John Doe)
59. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 58 as if fully rewritten herein.
60. Sometime before June 25, 2004, without any
provocation or notice to Plaintiff, Defendant John
Doe falsely and maliciously alleged to others through
verbal communications that Plaintiff had ordered an
employee under eighteen years of age to operate
hazardous machinery in violation of federal and state
laws including 29 C.F.R. § 570.63 (2004), section
4109.05 of the Ohio Revised Code Annotated (West
2004), and section 4101:9-2-10 of the Ohio
Administrative Code (2004).
61. The allegations of criminal misconduct made
by Defendant John Doe against Plaintiff, which were
calculated to injure Plaintiffs contractual
relationship with Defendant GE, have subjected
Plaintiff to ridicule and have caused Plaintiff to
suffer personal humiliation, mental anguish, and
degradation of his reputation.
62. Asa direct and proximate result of the
slanderous accusations made against Plaintiff by
Defendant John Doe, Plaintiff has suffered and will
continue to suffer personal, professional, and
financial injury.

Appendix - 25

COUNT 10

(Tortious Interference with Employment/Contractual

Relationship - John Brigadier)
63. Plarviiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 62 as if fully rewritten herein.
64. Phe falge allegations of sexual harassment
maliciously made against Plaintiff by Defendant
John Brigadier were not within the scope of his
duties as an employee of Defendant GE and were
made solely within his individual capacity and for his
personal benefit by attempting to secure a more lax
working environment under the supervision of a
more lenient supervisor.
65. Asa direct and proximate result of Defendant
John Brigadier’s tortious interference with the
employment/contractual rele tionship between
Plaintiff and Defendant GE, for which Plaintiff's
demotion and subsequent discharge by Defendant GE
is directly attributed, Plaintiff has suffered and will
continue to suffer personal, professional, and
financial injury.

COUNT 11

(Tortious Interference - Sue Brigadier and David

Brigadier)
66. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 65 as if fully rewritten herein.
67. The libelous and slanderous allegations of
sexual harassment jointly and severally made

Appendix - 26

against Plaintiff by Defendants Sue Brigadier and
David Brigadier were made with malicious intent
and were made for their joint and several benefit by
attempting to vicariously obtain damages from
Defendant GE and by attempting to obtain a more
lax working environment for their son, Defendant
John Brigadier.

68. At all times herein stated, neither Defendant
Sue Brigadier nor Defendant David Brigadier had
any form of employment, business, or contractual
relationship with either Plaintiff or Defendant GE.
69. Asa direct and proximate reslt of the tortious
interference with the employment/contractual
relationship between Plaintiff and Defendant GE by
Defendants Sue Brigadier and David Brigadier, for
which Plaintiff's demotion and subsequent discharge
by Defendant GE is directly attributed, Plaintiff has
suffered and will continue to suffer personal,
professional, and financial injury.

COUNT 12

(Tortious Interference with Employment/Contractual

Relationship - John Doe)
70. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 69 as if fully rewritten herein.
71. As a non-supervisory employee of Defendant
GE, the allegations made by Defendant John Doe
that Plaintiff had ordered an employee under
eighteem vuews of age to operate hazardous machinery
in violatiom ef federal and state laws, including 29

Appendix - 27

C.F.R. § 570.63 (2004), section 4109.05 of the Ohio
Revised Code Annotated (West 2004), and section
4101:9-2-10 of the Ohio Administrative Code (2004),
were not within the scope of his duties and were
made solely within his individual capacity.

72. Defendant John Doe made the aforesaid
allegations against Plaintiff with knowledge that
they were false and with the justifiable expectation
and desire that others, including Defendant Lenson,
would accept them as true.

73. The allegations made to others against
Plaintiff by Defendant JoAn Doe were made with an
underlying malicious intent and were made for his
personal benefit by attempting to secure a more lax
working environment under the supervision of a
more lenient supervisor. _

74. Asa direct and proximate result of Defendant
John Doe's fraud upon others, which has tortiously
interfered with the employment/contractual
relationship between Plaintiff and Defendant GE and
has caused Plaintiffs demotion and subsequent
discharge by Defendant GE, Plaintiff has suffered
and will continue to suffer personal, professional, and
financial injury.

COUNT 13
(Civil Conspiracy to Defame)
75. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 74 as if fully rewritten herein.
76. The defamatory allegations made by

Appendix - 28

Defendants John Brigadier, Sue Brigadier, David
Brigadier, Lenson, GE by and through its employees,
John Doe, and other employees of Defendant GE not
yet named as defendants, were made with malicious
intent and in concert among the Defendants for the
purpose of injuring Plaintiff in his person.

77. The concerted actions undertaken by
Defendants as set forth in paragraph 76, above, have
caused injury to Plaintiff in the form of ridicule and
degradation of his reputation which has, in turn,
resulted in his demotion, loss of his employment, and
impairment of his future earning capacity.

COUNT 14
(Civil Conspiracy to Tortiously Interfere with
Employment/Contractual Relationship)

78. Plaintiff repeats and incorporates by reference
all material allegations set forth in paragraphs 1
through 77 as if fully rewritten herein.
79. The actions undertaken by Defendants John
Brigadier, Sue Brigadier, David Brigadier, Lenson,
John Doe, and other employees of Defendant GE not
yet named as defendants, to tortiously interfere with
the employment/contractual relationship between
Plaintiff and Defendant GE were done so in concert
among the Defendants and were carried out with
malicious intent to injure Plaintiff.
80. The concerted actions undertaken by
Defendants as set forth in paragraph 79, above, have
caused personal, professional, and financial injury to

Appendix - 29

Plaintiff including his demotion and subsequent
discharge by Defendant GE.

WHEREFORE, Plaintiff demands judgment
jointly and severally against all Defendants as

follows:

a. Court order enjoining Defendants from
continued publication of the defamatory allegations
made against Plaintiff as set forth above.

b. Compensatory and punitive damages in excess
of $25,000.

c. Cost of suit.

d. Such other relief as the court deems just.

Respectfully submitted,

Dated: August 5, 2004 Is
Matthew A. Craig
11325 Cheyenne Trail
Suite 302
Parma Heights, OH 44130
440-888-2280

Appendix - 30

Private Party Civil Cases Denied Oral Argument
Pursuant to Sixth Circuit Rule 34())
(April 1, 2005 - March 31, 2006)

* = cases not involving a pro se party.

04-1048 04-5946 05-3474
04-1460 04-5964 05-3504
04-1498 *04-6120 05-3550
04-1609 04-6212 05-3553
04-1617 04-6231 05-3612
04-1698 04-6256 05-3807
04-1701 04-6366 05-3837
04-1795 04-6423 05-3878
04-1905 04-6492 05-3977
04-2155 05-1003 05-5015
04-2261 05-1141 05-5071
04-2265 05-1370 05-5083
04-2290 05-1406 05-5099
04-2316 05-1464 05-5129
04-2336 05-1554 05-5164
04-2352 05-1614 05-5441
04-2399 05-1648 05-5443
04-3161 05-1725 05-5495
04-3162 05-1794 05-5519
04-3270 05-1957 05-5542
*04-3304 05-3021 05-5608
04-3995 05-3070 05-5627
04-4194 05-3115 05-5882
04-4244 05-3194

04-4248 05-3206

04-4256 05-3209

Appendix - 31

04-4279
04-4302
04-4360
04-4412
04-5889

05-3220
05-3222
05-3225
05-3415
05-3463

Appendix - 32

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1610%3A1. Public record. Not legal advice.