Petition for Writ of Certiorari — Davis v. Johnson Controls, Inc.

Supreme Court, U.S.

FiLs DD

94 458 SEP -6 1994

NQrice. UF ine CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

LARRY D. DAVIS,

Petitioner,

V.

JOHNSON CONTROLS, INC.,

Respondent.

On Petition for a Writ of

Certiorari to the United States

Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

—— ae a

RECEMED DAVID W. WHIPPLE

| one (Counsel of Record)

SE 1394 C. DAVID WHIPPLE

WHIPPLE LAW FIRM, P.C.

a seiiguede ee 818 Grand, Ste. 400

pS! Kansas City, Missouri 64106

Attorney for Petitioner

QUESTION PRESENTED

Whether Plaintiff's claim for handicap

discrimination under the Missouri Human Rights Act, Mo.

Revised Statute § 213.010, et seq. is preempted by § 301 of

the Labor Management Relations Act, 29 U.S.C. § 185(a).

TABLE OF CONTENTS

Page

CPS ee PURVEEEE 6.5 5 bec cess bwhewnns

TARA OF AUTRE vie cdiesececeveces iv

Ie Ee eee eens eedee es beeen 2

Pe I 6 Bs es CS Eee 2

EAE Gs Bele EE UE 65 6 0006 odes ae owen 2

DEPLERSMETE GOP SOME GPRS 65 ves vivens wcawes 3

REASON FOR GRANTING THE WRIT ......... 7

i. The Importance Of The Issue ......ccccccess 7

II. The Result Below Is In Conflict With Decisions

Ce eee eee na 6 bob baw eee eee 10

III. The Decision Below Conflicts with the Decisions

of Other Courts of Appeals .......2scccees 13

IV. Decision of the Court of Appeals is Erroneous 14

CAPE «600.0 000 65 ee aes ae eee 22

APPENDIX:

Decision of the U.S. Court of Appeals for

the Eighth Circuit, decided April 22, 1994

Peer ee eee la

TABLE OF CONTENTS-Continued

Page

Order of the U.S. Court of Appeals for the

Eighth Circuit denying Petition for Petition

for Rehearing dated June 7, 1994 ........... lla

Order of the U.S. District Court for the

Western District of Missouri dated December

31, 1992, (granting Defendant's Motion to

Dismiss for failure to state a claim) .......... 12a

Missouri Administrative Code

EE ee 25a

Table of States that have enacted

legislation to protect handicapped workers .... . 3la

(iii)

TABLE OF AUTHORITIES

CASES Page

Ackerman v. Western Electric Co.,

Se ae SO EL ccc eck ta wae bes 13

Allis Chalmers Corp. v. Lueck,

PE SID hoes ct ee ckbivevae es 6

Atchison T. & S.F.R. v. Buell,

ee Seas Se NT 65 oo eee eee 12

Barrentine v. Arkansas-Best Freight Systems, Inc.,

Ce Ria PU RAPES BSS oaks hee Nae ede 12

Croston v. Burlington Northern Railroad Company,

999 F206 361 (9 Cir. T995) ow cc ces 14

Hawaiian Airlines, Inc. v. Norris,

USS. , 114 S. Ct. 2239 (1994) .. passim

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

Cee ae Ge Tee ek ieee ke aves passim

Livadas v. Bradshaw,

USS. , 114 S. Ct. 2068 (1994) .. passim

Miller v. A T & T Network Systems,

850 F.2d 543 (Sth Cir. 1968) ............. 13

O’Brien v. Consolidated Rail Corp.,

Pee Bal ¢s 5). : hr re 14

(iv)

TABLE OF AUTHORITIES-Continued

CASES Page

O’Shea v. Detroit News,

G37 F.20 GES (60) Cir. 1969) . nc cece cuee 13

Ramirez v. Fox Television Station,

O96 F.2d 743 (Sth Cir. 1993) .. 2... 6c cee cs 13

School Board of Nassau County v. Arlene,

Ge WE BIO CUED: oe wad beda ev ccnseces 20

Smolarek v. Chrysler Corporation,

879 F.2d 1326 (6th Cir. 1989) ............ 14

Umphries v. Jones,

804 S.W.2d 38 (Mo.App. 1991) ........ passim

STATUTES & RULES

ee a ee 2

i BE eh ks 4

AO US BONNE 5 ok i ke 7

Americans with Disabilities Act,

Me a I eo oe ss bee eee ee ae wer 19

Federal Rehabilitation Act of 1973,

Sr A hho he ee hk oe eae es 20

Labor Management Relations Act,

Bo A ee 8 eee | | Re passim

(v)

TABLE OF AUTHORITIES-Continued

CASES Page

Missouri Human Rights Act, Mo. Rev. Stat.

Ee Pe eee ere ee ee 7

Mo. Admin. Code Title VIII,

SEE iy oo. obs’ 0 0'0 0 w 09:0 0 we O80 17

I GU: RIAN 96 h.5 6 5 5 a oc eis Ve tiv cvee ewe 2

5 9) | rr ree 7

(vi)

IN THE

SUPREME COURT OF TH. UNITED STATES

OCTOBER TERM, 1994

No.

LARRY D. DAVIS,

Petitioner,

V.

JOHNSON CONTROLS, INC.,

Respondent.

PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Petitioner, Larry D. Davis, respectfully prays that a

Writ of Certiorari be issued to review the judgment and

opinion of the United States Court of Appeals for the

Eighth Circuit entered on April 22, 1994.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Eighth Circuit is officially reported at 21 F.3d 866,

unofficially reported at 146 L.R.R.M. (BNA) 2382, and

reprinted in the Appendix to this Petition at Pet. App. 1a.

The opinion in the United States District Court for the

Western District of Missouri has not been published but

is reprinted at Pet. App. 12a. The Denial of Rehearing by

the Eighth Circuit on June 7, 1994 has not been published

but is reprinted at Pet. App. 11a.

JURISDICTION

__ The judgment of the Court of Appeals was entered

on April 22, 1994. A timely Petition for Rehearing was

filed on May 6, 1994. The Petition for Rehearing was

denied on June 7, 1994. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. § 1254(1).

STATUTES ~“'VOLVED

Section 213.055 Mo. Rev. Stat. of the Missouri

Human Rights Act provides in relevant part:

2

1. It shall be an unlawful employment practice:

(1) For an employer, because of the race, color,

religion, national origin, sex, ancestry, age or

handicap of any individual:

(a) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual's race, color, religion, national

origin, sex, ancestry, age or handicap.

Section 301(a) of the Labor Management Relations

Act, 29 U.S.C. § 185(a) provides in relevant part:

Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this Act, or between any such labor

organizations, may be brought in any district court

of the United States having jurisdiction of the

parties, without respect to the amount in

controversy or without regard to the citizenship of

the parties.

STATEMENT OF THE CASE

Plaintiff filed suit in the District Court for the

Western District of Missouri against Johnson Controls

alleging that Johnson Controls had discriminated against

Plaintiff by refusing to return him to work because of a

3

handicap that he suffers with regards to a back condition.

The jurisdiction of the District Court was invoked under

28 U.S.C. § 1332 because of diversity of citizenship, the

Plaintiff being a citizen of Missouri and the Defendant a

citizen of Wisconsin.

This suit was filed following the issuance of a

Notice of Right to Sue letter by the Missouri Commission

on Human Rights as a result of a complaint that Plaintiff

filed with the Commission on September 21, 1990.

Plaintiff alleged that Johnson Controls' refusal to return

him to work violated Missouri's Human Rights Act which

prohibits discrimination based upon a handicap.

In February of 1989 Plaintiff injured his back and

was unable to work. Johnson Controls denied his request

to return to work on February 27, 1989 and Plaintiff

grieved that refusal which was upheld by an arbitrator on

November 3, 1989. Following the arbitrator's decision,

Plaintiff felt that his back condition had improved to an

extent that would allow him to return to work. In late

4

November of 1989, Plaintiff sought to return to work, but

was advised that until he could provide medical

documentation satisfactory to Johnson Controls, he would

not be permitted to return to work. On May 31, 1990,

after receiving a return to work note from his doctor,

Plaintiff again approached Johnson Controls about

returning to work. On June 6, 1990, Plaintiff received a

letter from Johnson Controls advising him that he would

not be permitted to return to work at that time.

Thereafter Plaintiff filed his Complaint with the Missouri

Commission on Human Rights.

Following the filing of this action in District Court

Johnson Controls moved to dismiss the case or in the

alternative for summary judgment. Johnson Contiols

argued that Plaintiff's Complaint was barred as Plaintiff's

claim under Missouri's Human Rights Act was preempted

by § 301 of the LMRA. Defendant further argued that

Plaintiff's claim was barred by the statute of limitations.

The District Court granted Johnson Controls’

5

Motion to Dismiss on the basis that Plaintiff's claim was

preempted by § 301 of the LMRA. Plaintiff appealed to

the Eighth Circuit Court of Appeals which affirmed the

District Court's dismissal of the case on preemption

grounds. The Eighth Circuit denied Plaintiff's Request for

Rehearing.

The Eighth Circuit Court of Appeals concluded

that the relocation of Plaintiff to a position commensurate

with his physical limitations would require an examination

of the seniority rights of both Davis and other employees

under the collective bargaining agreement and as such

Plaintiff's claim was preempted under Allis Chalmers Corp.

v. Lueck, 471 U.S. 202 (1985) and Lingle v. Norge Division

of Magic Chef, Inc., 486 U.S. 399 (1988). The Court did

not reach Johnson Controls’ statute of limitations

argument in view of its affirmance on the preemption

issue.

REASONS FOR GRANTING THE WRIT

I. The Importance of the Issue

The Missouri Human Rights Act essentially

parallels Title VII's', prohibitions against discrimination

based upon an individual's race, color, religion, sex or

national origin with one important additional prohibition,

that of handicap discrimination. The Act provides that it

is the duty of the Commission on Human Rights to

eliminate and prevent prohibited discrimination, including

discrimination based upon handicap. The Act further

provides the Commission with the ability to remedy such

unlawful employment practices and gives to individuals the

right to bring a civil action in court to seek redress for

such unlawful employment practices. Mo. Rev. Stat. §

213.111.

The importance of this Court granting certiorari

arises from the fact that the effect of the Eighth Circuit's

7

' 42 U.S.C. § 2000e-2

decision in this case is to foreclose the right of unionized

employees to seek redress for the discriminatory practices

of their employers under non-negotiable state law. To

find, as the Eighth Circuit Court of Appeals did, that

Plaintiffs state law claim of handicap discrimination is

preempted by § 301 of the LMRA effectively emasculates

the explicit prohibitions of the statute and forecloses union

members’ right to access to this statute while non-union

employees are not so similarly affected. Unionized

employees have just as much right to be free from

handicap discrimination as non-unionized employees.

The results of this decision have a far-reaching

impact beyond that of this case alone. Already the impact

of this decision is affecting other similar cases now

pending in federal court. Not only does this decision

effectively rewrite the Missouri Human Rights Act but it

also rewrites all of the other similar acts enacted by other

States and impacts unionized employees seeking redress

under those acts. To date, at least 39 other states have

8

enacted legislation similar to the Missouri Human Rights

Act, designed to specifically protect the rights of

handicapped employees. All of these statutes would be

negatively impacted by this decision that such claims are

preempted by § 301(a). See App. p. 31a.

It further needs to be considered as to where does

this application stop? Today if handicap discrimination

under state law is preempted by § 301, tomorrow will it be

race or sex? What about other forms of discrimination

prohibited by state law but not protected under federal

law? All of these provide important reasons as to why this

Court should grant certiorari.

Petitioner is not aware of this Court being faced

with the question of whether a state discrimination law,

particularly handicap discrimination, is preempted under

§ 301. As such, this provides the Court with the

opportunity to not only rule on this question for the first

time, but also to give further directions with regards to the

scope of § 301 preemption. As such, this case provides

9

the Court the ideal case to make and give such directions.

II. The Result Below is in Conflict with Decisions

of this Court ;

The decision rendered by the Eighth Circuit panel

below cannot be reconciled with this Court's seminal

decisions on § 301 preemption of Allis Chalmers v. Lueck,

supra and Lingle v. Norge Division of Magic Chef, supra.

These two cases teach that § 301 preempts only if

resolution of the state law claim depends upon the

meaning of a collective bargaining agreement. Lingle,

supra at 405-406. If the claim is independent of the

collective bargaining agreement and is based upon a non-

negotiable state right, § 301 does not preempt the claim.

Lueck, supra at 214; Lingle, supra at 408-409.

Subsequent to the Eighth Circuit's decision in this

case, this Court has made its further pronouncements on

§ 301 preemption and the meanings of Lueck and Lingle

with the recent decisions of Livadas v. Bradshaw, _ US.

___, 114. S.Ct. 2068 (1994); and Hawaiian Airlines, Inc. v.

10

OE EEO EO ee

Norris, ___—-US. __, 114 S.Ct. 2239 (1994). Both of

these cases are of tremendous significance in Plaintiff's

request for this Court to grant certiorari. Livadas involved

the question of whether a California state statute was

preempted under § 301(a) and the NLRA. This Court

found that the California state statute was not preempted

by §301(a).

In Livadas, this Court found, in following Lingle,

that when liability is governed by independent state law

the fact that a collective bargaining agreement will be

consulted in the course of state law litigation does not

require the claim to be extinguished by § 301. Id. at pg.

2079. This Court further noted the special dangers that

can occur when distinctions arise between union

represented employees and those who are not. In fact, the

Court noted that the widespread practice in Congress and

State legislatures has been to bestow "basic employment

guarantees and protections on_ individual employees

without singling out members of labor unions (or those

1]

represented by them) for disability . . ." /d. at pg. 2081.

The Missouri Human Rights Act makes no such

distinction between unionized and non-unionized

employees.

Hawaiian Airlines teaches that substantive

protections provided by State law are not preempted by §

301 and the fact that the same analysis of the facts would

be required in both a grievance proceeding and a state

court action does not mandate § 301 preemption. /d. at

2246, 2248. If the employee's claim is based on rights

arising Out of a statute "designed to provide minimum

substantive guarantees to individual workers" Jd. at 2247,

citing Atchison T. & S.F.R. v. Buell, 480 U.S. 557, 565

(1987) quoting Barrentine v. Arkansas-Best Freight Systems,

Inc., 450 U.S. 728, 737 (1981), such a claim is not

preempted. See also Lingle, supra at 412. Likewise, the

fact that there exists a potential C.B.A. based remedy does

not deprive employee of independent remedies available

under state law. Hawaiian Airlines, supra at 2248.

12

Consequently, this decision by the Eighth Circuit

Court of Appeals is in conflict with the decisions of this

Court and Petitioner would request certiorari be granted

to resolve this conflict.

III. The Decision Below Conflicts with the

Decisions of Other Courts of Appeals

The decision of the Eighth Circuit panel below

conflicts with a number of decisions from other circuits

addressing the question of § 301 preemption under state

handicap laws. The Ninth Circuit has addressed the issue

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

Cir. 1988); Ackerman v. Western Electric Co., 860 F.2d 1514

(9th Cir. 1988) and Ramirez v. Fox Television Station, 998

F.2d 743 (9th Cir. 1993). These cases found that the

plaintiffs’ handicap discrimination claims under state law

were not preempted by § 301. The Sixth Circuit ruled the

same in Smolarek v. Chrysler Corporation, 879 F.2d 1326

(6th Cir. 1989) and O’Shea v. Detroit News, 887 F.2d 683

(6th Cir. 1989).

13

While there are several circuits, including the Ninth

Circuit, that has found handicap discrimination claims

under state law to be preempted by § 301, these cases are

factually distinguishable. Crostc.. v. Burlington Northern

Railroad Company, 999 F.2d 381 (9th Cir. 1993) and

O’Brien v. Consolidated Rail Corp., 972 F.2d 1 (Ast Cir.

1992). The distinction is that the contract in both of those

cases established physical condition requirements for job

performance, benefits and ability to return-to-work. Such

provisions provide a factually distinguishing basis to the

present case as the present collective bargaining

agreement has no such provisions in it. Of further note,

is that even with those provisions, Plaintiff would still

contend that claims under independent state law are non-

negotiable and thus are not preempted by § 301.

IV. Decision of the Court of Appeals is Erroneous

One of the key touchstones under Lueck and Lingle

is that of whether the state law claim is based upon a

substantive non-negotiable state law right. Substantive

14

protections provided by state law, independent of whatever

labor agreement might govern, are not preempted and

different considerations apply where the employee's claim

is based on rights arising out of a statute designed to

provide "minimum substantive guarantees to individual

workers", Hawaiian Airlines, supra at 2472; Lingle, supra at

412. Plaintiff brought his claim to enforce rights arising

out of a statute designed to provide "minimum substantive

guarantees to individual workers", that of a prohibition

against handicap discrimination. Johnson Controls is, as

are all employers doing business in the State of Missouri,

subject to the Missouri Human Rights Act and they may

not contract away the substantive guarantees provided to

individuals by the Missouri State Legislature. No

exception is made in the Act for unionized employees.

Section 301 does not grant parties to a collective

bargaining agreement the ability to contract for what is

illegal under State law, Hawaiian Airlines, supra at 2248

quoting Lueck at 211-12. Plaintiff believes it would be

15

illegal for Johnson Controls to contract away the

prohibition against handicap discrimination under Missouri

law. As such, Plaintiff's right to be free of handicap

discrimination is independent of the collective bargaining

agreement.

In evaluating § 301 preemption, this Court has

looked to the source of the duty the plaintiff seeks to

enforce. If the source of the duty arises from state law,

the claim is "independent" and is not preempted. But, if

the only source of the claim arises from the contract, then

the claim is preempted. Hawaiian Airlines, supra at 2246.

On the other hand, even though the state law claim would

require the same analysis of the facts as would be required

under the collective bargaining agreement, this does not

preempt the state law claim. Livadas, supra at 2078;

Hawaiian Airlines, supra at 2248-49. Likewise, the fact that

the collective bargaining agreement will be consulted in

the course of state law litigation or that a potential

collective bargaining agreement-based remedy may exist

16

does not preempt the employee's state law claim. Livadas,

supra at 2079; Hawaiian Airlines, supra at 2249.

The Eighth Circuit's decision below totally ignores

these principles. Its decision below addresses none of

these principles and does not even discuss the question of

whether or not Missouri's handicap discrimination law is

a non-negotiable right designed to provide "minimum

substantive guarantees to individual workers". Without

addressing these underlying issues in § 301 preemption,

the basis for the Eighth Circuit's decision below is flawed.

The basis for the Eighth Circuit decision appears to

be on two points. First, that Title VIII, § 60-

3.060(1)(G)(3)(D) of the Missouri Administrative Code

(Reprinted at Pet. App. 26A) requires the Court to refer

to the collective bargaining agreement. Plaintiff has

argued all along, and continues to argue, that the

interpretation of this regulation has been taken out of

context. The wording of the disputed portion of this

regulation is in reference to the ownership interest in the

17

subject of the proposed accommodation, i.e. whether the

employer owns or leases or rents the building or

machinery to which the proposed accommodation would

have to occur. This C.S.R. would permit reference to the

terms of an agreement, such as a lease, to determine

whether or not the employer had the legal authority to

make such an accommodation to the premises or the

equipment. This provision has nothing to do with the

terms of a collective bargaining agreement. This provision

is simply inapplicable in the context to which it is being

applied at the present time. To argue that this language

requires interpretation of the collective bargaining

agreement is not in keeping with the plain meaning of the

language of this regulation.

The second basis for the Eighth Circuit's decision

is that Plaintiff's claim would require examination of the

seniority rights of both Plaintiff and other employees

under the collective bargaining agreement. Plaintiff

disagrees with this additional finding of preemption. As

18

taught by both Livadas and Lingle the fact that a collective

bargaining agreement will be consulted in the course of

State law litigation does not require the claim be

preempted. Livadas, supra at 2079. Likewise, the fact of

the existence of a potential collective bargaining

agreement-based remedy does not deprive the employee

of remedies available under state law.

In discussing this point, the Eighth Circuit

apparently is making an initial assumption that Plaintiff's

claim is limited to him seeking to be transferred to a

different job. But, Plaintiffs claim is in the alternative,

seeking first the return to his previous job and then as an

alternative a transfer to a different job. Thus, this initial

assumption is erroneous.

The Court cites the case of Umphries v. Jones, 804

S.W.2d 38 (Mo.App. 1991) for the basis that reasonable

accommodation does not require an employer to do that

which would interfere with the legitimate rights of other

employees absent an established policy to that effect.

19

Plaintiff does not necessarily dispute the results in the

Umphries case based upon the facts of that case. In fact,

this principal is the same under the Federal Rehabilitation

Act of 1973, 29 U.S.C. § 701 et seq. and presumably under

the Americans with Disabilities Act, 42 U.S.C. § 12101 et

seq. See School Board of Nassau County v. Arlene, 480 U.S.

273 (1987). Appellant contends that the Umphries case is

inapplicable because the Court in Umphries found an

established policy that did not permit such transfers or

bumping to accommodate handicaps. While in the case at

bar, no such finding has been made. In fact, Plaintiff

contends that Johnson Controls has a policy of

accommodating handicapped employees separate and

apart from the collective bargaining agreement. If an

employer does have such a policy, then the employer

cannot deny an employee alternative employment

opportunities available under the employer's existing

policies. School Board of Nassau County v. Arlene, supra at

289, n.19.

20

These are principles totally separate and

independent of any provision of the collective bargaining

agreement. The Umphries case is a state law case not

involving the interpretation of a collective bargaining

agreement. Thus, this issue of whether an employer can

transfer an employee in order to accommodate him arises

under substantive principles of state law rather than under

the terms of the collective bargaining agreement. As such,

no reference to the seniority provisions of the collective

bargaining agreement is necessary and the holding of the

Umphries case is inapplicable on its facts.

In Hawaiian Airlines, the petitioners made a similar

argument that resort to the collective bargaining

agreement would have to be had to determine the basic

issue of liability - that of whether the respondent was

discharged. This Court rejected that argument as the

argument raised a "purely factual question". Jd at 2251.

This same analysis applies to the argument that the

seniority provisions of the contract would have to be

21

consulted. The question of whether or not Johnson

Controls can make the necessary accommodation is a

"purely factual question". No interpretation of the

agreement is necessary.

For all of these reasons, Plaintiff believes the

decision of the Eighth Circuit is erroneous.

CONCLUSION

The Petition for a Writ for Certiorari should be

granted and the judgment below reversed.

Respectfully submitted,

WHIPPLE LAW FIRM, P.C.

DAVID W. WHIPPLE, #29102

C. DAVID WHIPPLE, #15216

400 Scarritt Building

818 Grand Avenue

Kansas City, MO 64106

(816) 842-6411

FAX: 842-6463

ATTORNEYS FOR PETITIONER

22

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APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 93-1392

LARRY D. DAVIS,

Appellant,

v.

JOHNSON CONTROLS, INC.,

Appellee.

Appeal from the United States District Court

for the Western District of Missouri

No. 92-0485-CV-W-2

Hon. Fernando J. Gaitan, Jr., Judge

Submitted Sept. 17, 1993.

Decided April 22, 1994.

Rehearing Denied June 7, 1994.

Before McMILLIAN, WOLLMAN, and MORRIS

SHEPPARD ARNOLD, Circuit Judges.

2a

WOLLMAN, Circuit Judge. Larry D. Davis brought a

handicap discrimination claim against Johnson Controls,

Inc. ("Johnson") in District Court." The District Court

dismissed the Complaint = the ground that Davis's claim

is preempted by § 301(a) of the Labor Management

Relations Act of 1947, 29 U.S.C. § 185(a). We affirm.

I.

In 1979 Davis went to work as a production worker

for Johnson, which manufactures automobile and

industrial batteries. In February 1989 he injured his back

and was unable to work. Johnson denied his request to

return to work on February 27, 1989. Davis's back

condition improved, and on May 31, 1990, his physician

indicated that he could return to work. Nevertheless, on

June 6, 1990, Johnson again refused to allow Davis to

return.

On June 1, 1992, Davis filed this action, alleging

' The Honorable Fernando J. Gaitan, Jr. United States District Judge for

the Western District of Missouri.

)

2

3a

that Johnson had discriminated against him on the basis

of his handicap (his back condition) by not permitting him

to return to work after his condition had improved, in

violation of the Missouri Human Rights Act. Johnson

moved to dismiss Davis's Complaint or, in the alternative,

for summary judgment on the grounds that Davis's claim

was preempted by § 301 and barred by the statute of

limitations. Finding Davis's claim preempted, the District

Court dismissed the action and did not rule on the

question whether the statute of limitations barred Davis's

action.

II.

The District Court styled its ruling as one that

granted Johnson's motion to dismiss under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim

upon which relief could be granted. We conclude,

however, that the ruling was in the nature of a summary

judgment, for it seems apparent that the District Court

4a

took notice of the matters contained in the affidavits

offered in support of and in opposition to the alternative

motion for summary judgment. Since Davis filed an

affidavit and supporting memorandum in opposition to the

motion for summary judgment, he cannot complain that he

did not have notice that the court might consider and rule

upon that motion. In any event, any lack of formal notice

by the District Court that it would rule on the Motion for

Summary Judgment rather than on the Motion to Dismiss

was harmless in view of Davis's adequate opportunity to

respond to the summary judgment motion and the lack of

any showing that any material facts were disputed or

missing from the record. See, e.g., Angel v. Williams, 12

F.3d 786, 788-89 (8th Cir. 1993); Gibb v. Scott, 958 F.2d

814, 816 (8th Cir. 1992); cf. Phelps v. United States Federal

Government, 15 F.3d 735, 739 (8th Cir. 1994); Layton v.

United States, 919 F.2d 1333, 1334-35 (8th Cir. 1990).

§ 301(a) of the Labor Management Relations Act

provides: Suits for violation of contracts between-an

ee tt ON Sy OL eagle A:

Sa

employer and a labor organization representing employees

in an industry affecting commerce as defined in this [Act],

or between any such labor organizations, may be brought

in any District Court of the United States having

jurisdiction of the parties, without respect to the amount

in controversy or without regard to the citizenship of the

parties. 29 U.S.C. § 185(a). In Textile Workers Union v.

Lincoln Mills of Alabama, the Supreme Court held that §

301 not only provides Federal Courts with jurisdiction over

disputes involving collective-bargaining agreements, but

also authorizes "Federal Courts to fashion a body of

federal law for the enforcement" of such agreements. 353

U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972 (1957). In

Teamsters v. Lucas Flour Co., the Court further stated that

§ 301 mandates that all courts, whether state or federal,

apply Federal law to controversies arising from Collective

Bargaining Agreements. 369 U.S. 95, 103-04, 82 S.Ct. 571,

576-77, 7 L.Ed.2d 593 (1962). Then, in Allis-Chalmers

Corp. v. Lueck, the Court held that when the resolution of

6a

a State law claim is substantially dependent upon analysis

of the terms of a Collective Bargaining Agreement, the

claim is preempted and Federal Labor Law applies. 471

U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985).

In Lingle v. Norge Division of Magic Chef, Inc., the Court

made clear, however, that a State Law claim is preempted

by § 301 only if resolution of the claim requires the

interpretation of a Collective Bargaining Agreement. 486

U.S. 399, 413, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410

(1988). See also United Steelworkers of America v. Rawson,

495 U.S. 362, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990);

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

Pursuant to § 213.055 of the Missouri Revised

Statutes, an employer may not "discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment," because of the

individual's handicap. Mo.Rev.Stat. § 213.055. To

establish a prima facie case of handicap discrimination

under this section, Davis must prove three elements: (1)

a

Ta

that he had a handicap within the meaning of the statute;

(2) that Johnson took adverse action against him; and (3)

that his handicap was a factor in Johnson's adverse action.

Rose City Oil Co. v. Missouri Comm’n on Human Rights, 832

S.W.2d 314, 316 (Mo.Ct.App. 1992). The statute defines

handicap as a "physical or mental impairment which

substantially limits one or more of a person's major life

activities, a condition perceived as such, or a record of

having such an impairment, which with or without

reasonable accommodation does not interfere with

performing the job." Mo.Rev.Stat. § 213.010(10)

(emphasis added).

Johnson argues that Davis's claim is preempted

because his prima facie case will involve interpreting the

Collective Bargaining Agreement between Johnson and

the union representing Johnson's employees. More

specifically, Johnson contends that for Davis to establish

that he is handicapped within the meaning of the statute,

he will have to show that Johnson could have reasonably

8a

accommodated his request to return to work. Johnson

contends that this assessment requires reviewing Johnson's

obligations under the Collective Bargaining Agreement

and, consequently, interpreting the provisions of the

agreement relating to seniority rights. In support of these

arguments, Johnson points to Title VIII,

§60-3.060(1)(G)(3)(D) of the Missouri Code of State

Regulations which provides that in determining whether

an accommodation is reasonable under the Missouri

Human Rights Act, one factor to be considered is "the

authority to make the accommodation under the terms of

any bona fide agreement."

In Umphries v. Jones, 804 S.W.2d 38 (Mo.Ct.App.

1991), the Missouri Court of Appeals held that

"reasonable accommodation" under the Missouri Human

Rights Act did not require a teacher to be relocated

within the school district if such a transfer would conflict

with established school board policy and considerations of

seniority in assignments. "Reasonable accommodation

iia se itn islrweat .

9a

does not require the employer to reassign an employee or

to restructure a job in a way that would usurp the

legitimate rights of other employees." Jd. at 41.

The District Court therefore concluded, correctly,

we believe, that the relocation of Davis to a position

commensurate with his physical limitations would require

an examination of the seniority rights of both Davis and

other employees under the Collective Bargaining

Agreement. Davis's contention that the Collective

Bargaining Agreement allows for transfer without

alteration of seniority rights, even if ultimately held to be

correct, would perforce require interpretation of the

agreement. Accordingly, the District Court correctly held

that Davis's State law claim depends upon the meaning

ultimately given to the Collective Bargaining Agreement

and thus is preempted under the Lueck- Lingle doctrine.

In view of our affirmance on the preemption issue,

we need not reach Johnson's contention that Davis's claim

is barred by the statute of limitations.

10a

The judgment is affirmed.

A True Copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT

lla

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 93-1392WMKC

Larry D. Davis,

Appellant,

VS.

Johnson Controls, Inc.,

Appellee.

a. ~~ - 7: 7 - . a *

Appeal from the United

States District Court

for the Western District

of Missouri.

The petition for rehearing by the panel is denied.

June 7, 1994

Order Entered at the Direction of the Court:

/S/ MICHAEL E. GANS

Clerk, U.S. Court of Appeals, Eighth Circuit

12a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

No. 92-0485-CV-W-2

LARRY D. DAVIS,

Plaintiff,

Vv

JOHNSON CONTROLS, INC,

Defendant.

ORDER

Pending before this Court is Defendant's Motion to

Dismiss, or in the alternative, Motion for Summary

Judgment. Plaintiff filed this action against the

Defendant, his employer, under the Missouri Human

Rights Act, Mo.Rev.Stat. §§ 213.010-125 (1983,

Supp.1992), alleging employment discrimination on the

basis of his handicap. Plaintiff claims that Defendant

unlawfully discriminated against him when it refused to

permit him to return to work after he suffered a series of

debilitating injuries.

tose toned

13a

I. BACKGROUND

Plaintiff began his employment in 1979 as a

production worker for the Defendant, Johnson Controls,

Inc. ("Johnson Controls"). In 1986, plaintiff injured his

shoulder and neck, and as a result of this injury, plaintiff

underwent surgery on his neck. Plaintiff also experienced

lower back strains in 1986 and 1987. On March 10, 1988,

plaintiff again injured his shoulder and lower back in an

accident while working at Johnson Controls. A medical

examination revealed that Plaintiff suffered from a

herniated disk. Although Plaintiff returned to work, his

back condition was again aggravated in June of 1988 and

in February of 1989.

On February 13, 1989, due to the pain in his lower

back, Plaintiff was unable to work and was referred by

Defendant to the Med Clinic for a medical evaluation.

On February 27, 1989, Plaintiff requested to return to

work and submitted a doctor's note which stated that he

could perform "light" work. Defendant denied this request

14a

and placed Plaintiff on permanent leave of absence. By

November 27, 1989, Plaintiff contends that his condition

improved and again he asked to he allowed to return to

work. Defendant denied this request on November 30,

1989, citing Plaintiff's failure to produce medical evidence

that his condition had improved. On May 31, 1990,

Plaintiff again requested that he be allowed to return to

work and submitted a note from another doctor which

stated that Plaintiff could perform "light" work. Defendant

denied this request on June 6, 1990.

On September 21, 1990, Plaintiff filed an

administrative complaint with the Missouri Commission on

Human Rights. On June 1, 1991, Plaintiff filed the

present case alleging a violation of the Missouri Human

Rights Act. Defendant filed the instant motion arguing

that Plaintiffs claim is preempted by the Labor

Management Relations Act, 29 U.S.C. §§ 141-187 (1973),

and that Plaintiffs claim is barred by the statute of

limitations. Upon review of the arguments on this motion,

2S Gr Sted.

1 pamentee

Sa

the Court will grant Defendant's Motion to Dismiss for the

reason that Plaintiffs claim is preempted by the Labor

Management Relations Act. |

II. STANDARD OF REVIEW

It is well established that in ruling on a Motion to

Dismiss for failure to state a claim "that all well pleaded

factual allegations in the complaint are true ‘and [the

court must] construe the complaint, and all reasonable

inferences arising therefrom, most favorably to the

pleader.'" Westcott v. City of Omaha, 901 F.2d 1486, 1488

(8th Cir. 1990) (citing Morton v. Becker, 793 F.2d 185, 187

(8th Cir. 1986)). However, the liberality of this standard

is applicable only to well pleaded facts (and inferences

flowing from these facts). The court will not "blindly

accept the legal conclusions drawn by the pleader from the

facts." Westcott, 901 F.2d at 1488 (citing Morgan v.

Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).

Dismissal under Rule 12(b)(6) is not proper "unless it

appears beyond doubt that the Plaintiff can prove no set

l6a

of facts in support of his claim which would entitle him to

relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

II. DISCUSSION

A. Preemption by the Labor Management Relations Act

Defendant argues that Plaintiffs claim of

employment discrimination based upon his handicap under

the Missouri Human Rights Act is preempted by § 301 of

the Labor Management Relations Act ("LMRA"), 29

U.S.C. § 185(a) (1978). § 301(a) of the LMRA provides:

Suits for violation of contracts between an employer and

a labor organization representing employees in an industry

affecting commerce as defined in this Act, or between ary

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. In Lingle

v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06

(1988), the United States Supreme Court stated that § 301

requires preemption of a State law claim "if the resolution

17a

of a State law claim depends upon the meaning of a

Collective Bargaining Agreement." In other words, the

court must determine whether the state law creates "non-

negotiable State law rights on employers or employees

independent of any right established by contract, or,

instead, whether evaluation of the tort claim is inextricably

intertwined with consideration of the terms of the labor

contract." Allis Chalmers Corp. v. Lueck, 471 U.S. 202, 213

(1984). See also Hanks v. General Motors Corp., 859 F.2d

67, 69 (8th Cir. 1988) (a state wrongful discharge action is

preempted if "a fair assessment of the claim would be

impossible without reference to the Collective Bargaining

Agreement"). However, the court must keep in mind the

consideration that "not every dispute concerning

employment, or tangentially involving a provision of a

Collective Bargaining Agreement, is preemnted by § 301

or other provisions of the Federal Labor Law." Lueck, 471

U.S. at 211.

In this case, Defendant argues that Plaintiff's claim

18a

of handicap discrimination under the Missouri Human

Rights Act ("MHRA") is preempted because an evaluation

of the Collective Bargaining Agreement is necessary to

determine Defendant's rights under the MHRA. Support,

for Defendant's argument begins with the definition of

"handicap" in § 213.010(8) of the MHRA: "Handicap" [is]

a physical or mental impairment which substantially limits

One or more of a person's major life activities, or a

condition perceived as such, which with or without

reasonable accommodation does not interfere with

performing the job, utilizing the place of public

accommodation, or occupying the dwelling in question;

Mo.Rev.Stat. § 213.010 (Supp.1992) (emphasis added).

Defendant argues that the LMRA provides that

interpretation of the Collective Bargaining Agreement is

necessary to determine the meaning of "reasonable

accommodation." Defendant points to the Missouri Code

of State Regulations, 8 CSR § 60-3.060(1)(G)(3)(D), which

provides that in determining whether an accommodation

ne

19a

is reasonable under the MHRA, one factor to be

considered is "the authority to make the accommodation

under the terms of any bona fide agreement ...;"

Plaintiff contends that the handicap discrimination

claim is "independent" of the Collective Bargaining

Agreement. In support, Plaintiff principally relies on two

handicap discrimination cases from the Sixth Circuit:

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

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

Cir. 1988). The Court finds that both of these cases are

distinguishable from the present case.

In Miller, the Plaintiff filed suit against his

employer alleging employment discrimination under

Oregon state law because of his physical handicap. In

addressing the issue of whether Plaintiffs claim was

preempted under the LMRA, the Court considered

"whether the state law was intended by the state to rely on

This regulation was adopted by the Missouri Commission on Human

Rights as a guideline for the construction of the Missouri Human Rights Act.

Mo.Rev.Stat. §213.030(b) (Supp.1992).

20a

the terms of the Collective Bargaining Agreement, and

whether the state intended to impose terms that the

Collective Bargaining Agreement could not alter." Jd. at

547-48. The Court held that the Plaintiff's claim was not

preempted by the LMRA because the Oregon state courts

interpreted the state statute as requiring an independent

standard of discrimination apart from the Collective

Bargaining Agreement. /d. at 549 ("Oregon has construed

its discrimination statute so that it relies on standards of

discriminatory firings that are independent of any standard

of reasonable treatment set forth in the [Collective

Bargaining Agreement]").

Unlike the case in Miller, Missouri state law

provides that interpretation of the MHRA may rely on the

terms of the Collective Bargaining Agreement, and the

Collective Bargaining Agreement may define an

employee's rights under the MHRA. In Umphries v. Jones,

804 S.W.2d 38, 41 (Mo.Ct.App. 1991), the Missouri Court

of Appeals held that "reasonable accommodation" under

ae ET eT ae

i tha

21a

the MHRA does not require a schoo! teacher to be

relocated within the school district, where such a transfer

conflicted with established school board policy and

seniority in assignments. Although the Umphries case did

not involve a Collective Bargaining Agreement, it is clear

that the Court interpreted the language of the MHRA

within the context of the employment policies of the

school district. Furthermore, interpretation of the

Collective Bargaining Agreement is necessary according to

the Missouri State Code of Regulations, 8 CSR § 60-

3.060(1)(G)(3)(D), which provides that one factor to

consider in determining a "reasonable accommodation" is

the employer's authority to make an accommodation under

the terms of any agreement.’

3 The Court also finds that the decision in Smolarek

is distinguishable. In Smolarek, the Court held that

? As an example, Defendant asserts that relocation of Plaintiff would

require an examination of the seniority rights of Plaintiff and other employees

under the Collective Bargaining Agreement. Plaintiff argues that the

Collective Bargaining Agreement allows for transfer without alteration of

seniority rights. Regardless of the outcome, such a determination would

necessarily require interpretation of the Collective Bargaining Agreement.

—

22a

removal of Plaintiffs state law handicap discrimination

claim was not permissible under the "well-pleaded

complaint" rule because the federal question must appear

on the face of the complaint. Smolarek, 879 F.2d at 1333.

In that case, the Court found that removal was improper

because Defendant argued that the defense, rather than

Plaintiffs claim, required an interpretation of the

Collective Bargaining Agreement. Id. The present case is

distinguishable from Smolarek because this case does not

involve the issue of removal. Furthermore, Plaintiff has

the burden to establish that he could perform his job with

reasonable accommodation from the employer. See

Umphries, 804 S.W.2d at 41. Therefore, interpretation of

the Collective Bargaining Agreement is necessary as part

of Plaintiff's prima facie case.

In addition to the previous arguments, Plaintiff also

cites the Supreme Court decision in Lingle for the general

proposition that state anti-discrimination laws are not

preempted by the LMRA. Lingle, 486 U.S. at 405-06.

23a

However, this general proposition was first expressed as

dicta by the Court of Appeals in Lingle. The Court of

Appeals remarked that state anti-discrimination are not

preempted because Congress has affirmatively endorsed

State anti-discrimination remedies in Title VII of the Civil

Rights Act of 1964. Lingle v. Norge Div. of Magic Chef,

Inc., 823 F.2d 1031, 1046 n. 17 (7th Cir.1987), rev’d, 486

U.S. 399 (1988). On appeal, the United States Supreme

Court did not expressly adopt the Court of Appeals

comment. Rather, the Court stated that this distinction is

unnecessary because the principle focus of preemption

analysis is whether the court can resolve a discrimination

claim without interpretation of the Collective Bargaining

Agreement. /d. at 412.

Based upon the foregoing analysis, the Court finds

that Plaintiffs claim of handicap discrimination is not an

independent state law claim, and therefore, Plaintiff's

claim is preempted by § 301 of the LMRA. Accordingly,

it is hereby ORDERED that Defendant's Motion to

24a

Dismiss for failure to state a claim is granted.

ENTER:

/S/ FERNANDO J. GAITAN, JR.

FERNANDO J. GAITAN, JR.

UNITED STATES DISTRICT JUDGE

DATED: DECEMBER 31, 1992

KANSAS CITY, MISSOURI

(1)

25a

MISSOURI ADMINISTRATIVE CODE

8 CSR § 60-3.060

Handicap Discrimination in Employment

PURPOSE: The Missouri Commission on

Human Rights has the power and authority to

adopt suitable rules to carry out the provisions

of the state Fair Employment Practices Act

pursuant to 213.030(6), RSMo(1986). The

rules represent the commission’s construction

of provisions dealing with handicap

discrimination in employment.

Definitions. When used in these rules -

(A) The phrase physical or mental impairment

means -

1. Any physiological disorder

condition, cosmetic disfigurement

anatomical loss affecting one (1) or more of

the following body systems: neurological;

musculoskeletal; special sense organs;

respiratory, including speech organs;

cardiovascular; reproductive; digestive,

genito-urinary; hemic and lymphatic; skin;

and endocrine; or

26a

Ps Any mental or psychological disorder,

such as mental retardation, organic brain

syndrome, emotional or mental illness and

learning disabilities;

(B) Disability means a person either has a

physical or mental impairment which substantially

limits one (i) or more of that person's major life

activities; or has a record of such impairment; or is

regarded as having such an impairment.

1. Minor temporary illnesses shall not

be considered physical or mental

impairments resulting in a_ disability.

Examples of minor temporary illnesses

include, but are not limited to, broken

bones, sprains or colds;

(C) Major life activities means those life

activities which affect employability such as

communication, ambulation, self-care, socialization,

education, vocational training, employment and

ee ae ee

27a

transportation;

(D) Has a record of such an impairment means

a person has a history of, or has been misclassified,

as having a physical or mental impairment that

does not substantially limit major life activities but

that is treated by an employer as constituting such

a limitation;

(E) Is regarded as having such an impairment

means a person -

1. Has a physical or mental impairment

that does not substantially limit major life

activities but is treated by an employer or

by others as constituting such a limitation;

or

yA Has none of the impairments defined

in paragraph (1)(A)1, or 2, of this rule, but

is treated by an employer or by others as

having an impairment which substantially

limits a major life activity;

28a

(F) Disability unrelated to a person's ability to

perform the duties of a particular job or position

means a disability which does not substantially

interfere with a person's ability to perform the

essential functions of the employment for which the

person applies, is engaged in or had been engaged.

1. Uninsurability or increased cost of

eins under a group or employee

insurance plan does not render a disability

job related.

z. A disability is not job related merely

because the job may pose a threat of harm

to the employee or applicant with the

disability unless the threat is one of

demonstrable serious harm t» his/her safety.

7 A disability is job related if placing

the disabled person n the job would pose a

demonstrable threat of harm to the health

and safety of others.

29a

4, A disability is not job related if, with

reasonable accommodation, it does not

prevent performance of the essential

functions of the job in question; and

(G) Reasonable accommodation means -

| 1. An employer shall make reasonable

accommodation to the known limitations of

a handicapped employee or applicant;

2. | Accommodation may include:

A. Making facilities used by

employees readily accessible to and

usable by handicapped person; and

B. Job restructuring, part-time or

modified work schedules, acquisition

or modification of equipment or

devices, the provision of readers or

interpreters and other similar

actions; and

3. In determining whether an

30a

accommodation is reasonable, factors

to be considered include, but are not

limited to:

A. The nature and cost of the

accommodation needed;

B. The size and nature of a

business, including the number and

type of facilities and the structure

and composition of the work force;

os The good faith — efforts

previously made to accommodate

similar disabilities; and

D. The ownership interest in the

Subject of the proposed

accommodation including the

authority to make the

accommodation under the terms of

any bona fide agreement such as a

lease.

|

3la

STATES THAT HAVE ENACTED LEGISLATION

TO SPECIFICALLY PROTECT THE RIGHTS

OF HANDICAPPED WORKERS

Alabama. ......... ALA. CODE § 21-5-1 (1975)

eae caves ALASKA STAT. § 18.80.220

Arizona .. ARIZ. REV. STAT. ANN. § 41-1463

California ........ CAL. GOVT CODE § 12940

Colorado... COLO. REV. STAT. § 24-34-402

| DEL. CODE. ANN. tit.

ch. 7, Subchapter III,

et seq.

District of Columbia ....... D.C. CODE ANN.

§ 1-2512 (1981)

WE Pouce. ae ee FLA. STAT. § 760.10

oO ee GA. CODE ANN. § 34-6A-4

oe HAWAII REV. STAT. § 378-2

_Illinois sg... ILL. REV. STAT. ch. 775 § 2013

Se eee eee eee IND. CODE § 22-9-1-13

RN. CX aie Seon ee, oa IOWA CODE § 216.6

. Kansas .. KAN. STAT. ANN. § 44-1001 et seg.

2. re KEN. REV. STAT. § 207.150

16.

a

18.

19.

20.

21.

yam

23.

24.

Fa I

26.

al.

28.

29.

30.

a.

32.

33.

34.

32a

Louisiana...... LA. REV. STAT. ANN. § 46:2254

Maine ...... ME. REV. STAT. ANN. tit. 5 § 4573

Maryland . MD. ANN. CODE 1957, Art. 49B, § 16

Michigan ....... MICH. COMP. LAWS § 37.1203

Minnesota ...........: MINN. STAT. § 363.03

Mississippi .. MISS. CODE ANN. § 25-9-149 (1972)

Montana ....... MONT. CODE ANN. § 49-4-101

New Hampshire N.H. REV. STAT. ANN. § 354-A:7

New Jersey ....ceucs NJ. REV. STAT. § 10:5-4.1

New Mexico ........ N.M. STAT. ANN. § 28-1-7

New York . N.Y.» «ecutive Law § 296 (McKinney)

North Carolina N.C. GEN. STAT. ch. 16 A § 168A-5

North Dakota ... N.D. CENT. CODE § 14-02.4-03

are OHIO REV. CODE ANN. § 4112.02

Oklahoma ......... OKLA. STAT. tit. 74 § 1302

Pennsylvania ....... 43 P.A. CONS. STAT. § 955

Rhode Island ... R.I. GEN. LAWS § 28-5-7 (1956)

South Carolina $.C.CODE ANN. § 43-33-530 (1976)

Tennessee ...... TENN. CODE ANN. § 8-50-103

33a

2 ee UTAH CODE ANN. § 34-35-6

36. Washington ..... WASH. REV. CODE § 49.60.180

37. West Virginia .......... W. VA. CODE § 5-11-9

I ee WIS. STAT. § 111.31

39. Wyoming ...... WYO. STAT. § 27-9-105 (1977)