Petition for Writ of Certiorari — Frost v. Harper

Tn TharRice OF THE OLEH

SUPREME COURT of the UNITED STATES

ANGIE FROST

Petitioner

Vv.

JOHN HARPER; MICHAEL “MIKE” SIDES;

ROBERT JOSEPH KOSTELINK; and CITGO REFINING AN D

CHEMICAL COMPANY, LP

Respondents

On Petition for Writ of Certiorari

To the United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

REGINA BACON CRISWELL

Counsel of Record

Carriage Place

P.O. Box 1399

Helotes, Texas 78023-1399

(210) 543-8940

(210) 543-9489 (facsimile)

RENE RODRIQUEZ

433 S. Tancahua

Corpus Christi, Texas 78401

(361) 882-1919

QUESTION PRESENTED FOR REVIEW

Whether the United States Court of Appeals for the Fifth

Circuit has departed from the accepted and usual course of

judicial proceedings in dismissing Petitioner's Appeal for want

of prosecution, as to call for the exercise of this Court's

supervisory power?

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the

following listed persons have an interest in the outcome of this

case. These representations are made in order that the judges of

this Court may evaluate possible disqualification or recusal.

1. Angie Frost, Plaintiff/ Petitioner

> John Harper, Michael “Mike” Sides, Robert Joseph

Kostelink, and Citgo Refining and Chemicals Company,

LP, Defendants/ Respondents

3. Regina Bacon Criswell, and René Rodriguez, Attorneys

for Plaintiff / Petitioner

4. Mr. Stanley Weiner, and JONES, DAY, REAVIS &

POGUE and Mr. Ralph Meyer and ROYSTON, RAYZOR,

VICKERY & WILLIAMS, Attorneys for

Defendants/ Respondents

TABLE OF CONTENTS

Page

STATEMENT OF JURISDICTION ...........0.ceeeeeee: 1

LAW AND RULES APPLICABLE...............0ee0e0. 2

STATEMENT OF THE CASE ............0..ceeeeeeees 2-4

SUMMARY OF THE ARGUMENT...............0e00: 5-6

EEE ye 5-16

inten ibe bhiciuesaexeens 16-17

-Dismissal of appeal for want of prosecution. ... 1-2

-Order Denying Motion tc Reinstate Appeal...... 3-4

-Order Denying Motion for Reconsideration of Order

Denying Motion to Reinstate Appeal............ 5-6

-Order Denying Motion to Remand and Dismissing

CEE SD sence vccnsces Sescvccesenssens 7-18

~Order Granting Motion to Dismiss........... 19-30

TABLE OF AUTHORITIES

Cases Page

Allis-Chalmers Corp. v. Lueck, 471 US. 202 (1985) ....... 8, 9,10

Baker v. Farmers Elec. Coop., Inc., 34 F.3d 274 (5 Cir. 1994)... .7

Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1519

OF Oe Possess a eee 15

Carroll v. Jaques Admiralty Law Firm, 110 F.3d 290 (5" Cir. 1997)

ER eS aH RAE 15

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)........... 8,12

Chambers v. NASCO, Inc., 501 U.S. 32, 35, reh’g denied 501 US.

OI 5 ois oacs aks eee 14

Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594 (5 Cir. 1981). . 13

Electrical Workers v. Hechler, 481 US. 851(1987) ............- 8

Evans v. City of Houston, 246 F.3d 344, 349 (5" Cir. 2001) ..... 8

Foman v. Davis, 371 USS. 178, 83 S.Ct. 227 (1962) .......-. 12,13

Franchise Tax Board of Cal. v. Construction ne Vacation

Trust for Southern Cal., 463 U.S. 1 (1983) ........ 2. eee eee eee 8

Gonzalez v. Trinity Marine Group, Inc., 117 F.3d 894 (5" Cir.1997)

ih ab be eC ON ee edwin en U6EEAOAN ES ON hen hoNneeheneNs 14,15

In Re United Markets Int'l, Inc., 24 F.3d 650, 654 (5 Cir.) cert

MAM TEE: CURIE. as oes discnsdsesieeeies 15

aumemneummeatenmmemmennnpnaneangile

EEE ee

a EO ee ER ee a

Leffall v. Dallas Indep. Sch. Dist. 28 F.3d 521, 524 (5 Cir.1994). ..

cepyestscdeinegesctaveseuseanvesese ses WOaenneen eee 12

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399 (1988) .

ccueepenscguervekebeeuebageeseeeeeunssesepennecere 9,10,11

Link v. Wabash Railroad Co., 370 U.S. 626, 629 (1962)....... 13,14

Lividas v. Bradshaw, 512 U.S. 107 (1994) ........---e sees: 11

Martin’s Herend Imports, Inc. v. Diamond Gem Trading U.S. Am.

Co., 195 F.3d 765, 770 (5™ Cir. 1999) ...... 2. eee eee ees 12, 13

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. at65 .........-. 8

Pressey v. Patterson, 898 F.2d 1018, 1021 (5" Cir. 1990)....... 15

Reece v. Houston Lighting & Power Company, 79 F.3d 485 (5® Cir.

WOVE) oon ccccBecnvccscccccccccncseceunevescevncess 78,15

San Diego Unions v. Garmon, 359 U.S. 236, 242 (1959) ....... 9

Stripling v. Jordan Production Co., LLC, 234 F.3d 863 (5™ Cir. 2000)

ok sb acvcbdeuen bn ceeshuesesbSsGUeehent RPeeseeEN Ss ae 12,13

Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962) .......-+---- 9

Trevino v. Levi Strauss & Co., 197 F.3d 777 (5" Cir. 1999) .... 11

Whitmire v. Victus Ltd., 212 F.3d 885(5" Cir. 2000) ......... 12

Statutes and Rules

ER OA os 5 ox xsins sacdakaeb any enkeneueionnn 1

29 U.S.C. § 185(a), §301 Labor Management Relations Act... ..

eR Pe EN 2,3,7,8,9,10,11

Fifth Circuit Rule 42.3.1.1.........cssecssesceees 1,5,6,13,15,16

ee a errerre rrr rrr errr 2,12

a a

STATEMENT OF JURISDICTION

The Clerk of the United States Court of Appeals for the Fifth

Circuit entered judgment as the mandate dismissing Petitioner's

appeal for want of prosecution on April 11, 2002. (App 1-2) The

Court of Appeals entered an Order denying Appellant's Motion

to Reinstate Appeal on May 7, 2002 (App 3-4); and then Denied

Appellants Motion for Reconsideration of Order Denying

Motion to Reinstate Appeal on June 18, 2002 (App 5-6). The

jurisdiction of the United States Supreme Court is invoked

pursuant to 28 U.S.C. §1254(1).

THE LAW AND RULES APPLICABLE TO THE CASE

Fifth Circuit Rule 42.3.1.1 states:

“If appellant is represented by appointed or

retained counsel, the clerk shall issue a notice to

counsel that, upon expiration of 15 days from the

date of the notice, the appeal may be dismissed

for want of prosecution unless prior to that date

the default is remedied, and must enter an order

directing counsel to show cause within 15 days

from the date of the order why disciplinary

action should not be taken against counsel. If the

: default is remedied within that time, the clerk

must not dismiss the appeal and may refer to the

court the matter of disciplinary action against the

attorney. If the default is not remedied within

that time, the clerk may enter an order dismissing

the appeal for want of prosecution or may refer

to the court the question of dismissal. The clerk

must refer to the court the matter of disciplinary

action against the attorney. The court may refer

the matter of disciplinary action to a special

master including but not limited to a district or

magistrate judge.”

iy

Section 301 of the Labor Management Relations Act states:

“Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting

commerce...may be brought in any district court

of the United States having jurisdiction of the

parties...” 29 USC 185(a).

Federal Rule of Civil Procedure 15(a) states:

“ A party may amend the party’s pleading once as

a matter of course at any time before a

responsive pleading is served or, if the pleading

is one to which no responsive pleading is

permitted and the action has not been placed

upon the trial calendar, the party may so amend

it at any time within 20 days after it is served.

Otherwise a party may amend the party’s

pleading only by leave of court or by written

consent of the adverse party; and leave shall be

freely given when justice so requires...”

STATEMENT OF THE CASE

Petitioner, Angie Frost brought suit against Citgo Refining

and Chemicals Company, LP (hereinafter referred to as Citgo)

and the individual Defendants in connection with her

termination on January 12, 2000 after approximately seventeen

(17) years of employment with Respondent Citgo. Petitioner

was a member of a Union, and her employment was governed

by a Collective Bargaining Agreement (hereinafter referred to as

CBA). After Plaintiff was terminated she invoked the grievance

process and ultimately the arbitration provisions provided for in

the CBA, and the arbitrator ruled in favor of Citgo. Petitioner

filed suit in state court alleging various causes of action,

including a claim for discrimination and retaliation under the

+.

Texas Labor Code. Respondents removed the suit to federal

court on the basis of §301 pre-emption under the Labor

Management Relations Act. Petitioner filed a Motion to Remand

in opposition to Defendant’s Removal.

The District Court denied Plaintiffs Motion to Remand and

dismissed sua sponte, some of Plaintiffs claims without

prejudice to refile, and found the remaining claims were pre-

empted under §301 of the Labor Management Relations Act.

Thereafter, the District Court entered a Final Order dismissing

some of Plaintiff's claims without prejudice. The case proceeded

forward pursuant to the District Court’s scheduling order, and

dispositive motions were filed, including Plaintiffs Motion for

Partial Summary Judgment and Defendants Motion to Dismiss

and Motion for Summary Judgment. In response to the Motion

to Dismiss, Plaintiff filed a Motion for Leave to File Amended

Complaint, which was denied by operation of law. The Court

granted Defendants’ Motion to Dismiss, and entered a final

order dismissing the case. Plaintiff filed a Motion for New Trial

and Motion to Alter or Amend the Judgment, which the Court

denied. The Court entered an Amended Order denying

Plaintiffs Motions on December 21, 2001, and Plaintiff filed her

Notice of Appeal on January 18, 2002.

After the Notice of Appeal was filed, counsel submitted a

tation statement and designation of items to be included

in the record and certificate regarding the transcript on January

28, 2002. Counsel then received correspondence from the Fifth

Circuit Court of Appeals dated February 1, 2002 which stated

that the appeal had been docketed, and that information

concerning briefing of the appeal woulc be sent at a later date.

Thereafter, counsel submitted an original appearance form and

appellate conference form for filing.

On February 14, 2002, counsel received notification from the

United States District Court for the Southern District of Texas

that the record on appeal was transmitted to the Fifth Circuit

Court of Appeals, which was subsequently delivered to attorney

René Rodriguez on March 25, 2002. Counsel for Petitioner

calculated the deadline to file Appellant's Brief for April 24,

2002, thirty (30) days from receipt of the record. On April 11,

2002, counsel for Petitioner sent correspondence to counsel for

Respondents in an attempt to confer regarding a Motion for

Extension of Time to File Appellant's Brief due to upcoming jury

trials scheduled to begin April 15 and April 29 respectively.

On April 12, 2002, the undersigned attorney received a

telephone call from the Clerk of the Fifth Circuit Court of

Appeals regarding the status and location of the record, and

during that conversation learned that the deadline to file the

Appellant's Brief was April 1, 2002, and that the case was

scheduled for dismissal for want of prosecution. According to

the clerk, correspondence dated February 18, 2002, set forth the

briefing schedule and had been mailed to the undersigned

attorney. The undersigned attorney advised the clerk that the

February 18, 2002, correspondence had never been received.

Later that same day, the undersigned attorney spoke with the

Court of Appeals case manager and learned that the case had

already been dismissed on April 11, 2002 for want of

prosecution.

On April 12, 2002, the undersigned attorney filed a Motion

to Reinstate the Appeal on the ground that the failure to file the

brief timely, or to request an extension before the deadline was

due to the fact that the briefing schedule had not been received

by counsel for Appellant. Appellant's Brief and Record Excerpts

was submitted for filing on April 19, 2002.

ARGUMENT

The Fifth Circuit Court of Appeals’ decision to dismiss

Petitioner's appeal for want of prosecution and in denying her

Motion to Reinstate Appeal and Motion for Reconsideration of

Order Denying Motion to Reinstate Appeal so far departs from

the accepted and usual course of judicial proceedings that this

Court should exercise its supervisory power to review the Court

of Appeals decision.

On April 11, 2002, the Clerk of the Fifth Circuit Court of

Appeals sent a certified copy of the judgment issued as the

mandate to the United States District Court which states “under

5th Cir. R. 42.3, the appeal is dismissed as of April 11, 2002 for

want of prosecution. The appellant failed to timely file brief and

record excerpts.” (App 1-2) The Fifth Circuit Court Clerk sent

a copy of this notice to counsel for Appellant on April 15, 2002,

which was received on April 19, 2002. 5th Cir. R. 42.3.1.1

governs dismissal for failure to prosecute when appellant is

represented by counsel, and specifically provides as follows:

“If appellant is represented by appointed or

retained counsel, the clerk shall issue a notice to

counsel that, upon expiration of 15 days from the

date of the notice, the appeal may be dismissed

for want of prosecution unless prior to that date

the default is remedied, and must enter an order

directing counsel to show cause within 15 days

from the date of the order why disciplinary

action should not be taken against counsel. If the

default is remedied within that time, the clerk

must not dismiss the appeal and may refer to the

court the matter of disciplinary action against the

attorney. If the default is not remedied within

that time, the clerk may enter an order dismissing

ca

the appeal for want of prosecution or may refer

to the court the question of dismissal. The clerk

must refer to the court the matter of disciplinary

action against the attorney. The court may refer

the matter of disciplinary action to a special

master including but not limited to a district or

magistrate judge.”

Petitioner’s counsel never received the notice required by

5th Cir. R. 42.3.1.1. Counsel was never afforded an opportunity

to cure the default as required by 5th Cir. R. 42.3.1.1, and in fact

did cure the default within 15 days of notice that the appeal was

dismissed for want of prosecution. The Court of Appeals failed

to comply with its own rule by failing to provide the notice

required by rule 42.3.1.1 and in dismissing the appeal despite

that the default was cured within the time specifically

contemplated by the rule.

Grounds for Appeal to the Fifth Circuit

Petitioner’s appeal to the Fifth Circuit Court of Appeals was

premised on the District Court's finding that her state law

discrimination claims were inextricably intertwined with a

collective bargaining agreement, such that the Court would be

required to “interpret” the agreement to determine whether

Respondents’ legitimate, non-discriminatory reasons for

terminating Petitioner were pretextual. A second basis of

Petitioner's appeal was the District Court’s refusal to allow

Petitioner Leave to File an Amended Complaint in response to

a Motion to Dismiss.

Preemption is a question of law reviewed de novo. See Reece

v. Houston Lighting & Power Company, 79 F.3d 485, 487 (5th Cir.

1996) cert. denied 117 S.Ct. 171, 136 L.Ed.2d 112 (1996); Baker v.

Farmers Elec. Coop., Inc., 34 F.3d 274, 278 (5" Cir. 1994).

-6-

erence TN AT

Ordinarily, pre-emption is plead defensively, and does not serve

as the basis for federal question jurisdiction. However, the

complete pre-emption doctrine provides that if the pre-emptive

force of a statute converts an ordinary state common-law

complaint into one stating a federal claim for purposes of the

well pleaded complaint rule, then federal question jurisdiction

exists. See Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987),

citing Metropolitan Life Ins. Co. v. Taylor, 481 US. at 65.

The complete pre-emption doctrine is primarily applied in

cases raising claims that are pre-empted by §301 of the LMRA.

Essentially, if a state law claim in any respect alleges a violation

of a collective bargaining agreement, the claim is a federal

question and all state law claims on that basis are preempted.

See Caterpillar, 482 U.S. at 394 citing Franchise Tax Board of Cal. v.

Construction Laborers Vacation Trust for Southern Cal., 463 US. 1,

23 (1983). § 301 of the LMRA governs claims founded directly on

rights created by collective bargaining agreements, and also

claims “substantially dependent on analysis of a collective

bargaining agreement.” See Caterpillar, 482 U.S. at 394 citing

Electrical Workers v. Hechler, 481 U.S. 851, 859 n. 3 (1987); Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985). However, § 301

does not pre-empt state laws that proscribe conduct, or establish

rights and obligations, independent of a labor contract. See Allis

Chalmers Corp., 471 U.S. at 212.

In the instant case, relying on Reece, 79 F.3d 485 (5 Cir.

1996), the District Court held that because Defendants will point

to the CBA as part of its legitimate, non-discriminatory reason

for terminating the Plaintiff, the Court will have to look to the

CBA to determine whether the claim of abuse of sick leave was

pretextual, and therefore Plaintiff's discrimination claims are

pre-empted. Defendants’ legitimate, nondiscriminatory reason

for terminating Plaintiff was her alleged failure to cooperate in

the company’s investigation of her abuse of sick leave. Plaintiff

. 3

was not terminated for abuse of sick leave, essentially she was

terminated for claimed insubordination. Whether or not an

employee was insubordinate is primarily a subjective

determination, notat all dependent upon “ interpretation” of the

CBA. Moreover and more importantly, whether or not the

Defendants’ proffered legitimate, nondiscriminatory reason for

terminating Plaintiff is a pretext for discrimination is not in any

respect dependent upon “interpretation” of any provision of a

collective bargaining agreement.

In considering the principles of federal pre-emption, courts

are primarily concerned with preventing potential conflict of

rules of law, remedies, and administration which might result

when two different law-enforcing authorities, one state and one

federal, consider issues that involve the special problems of

labor-management relations. See San Diego Unions v. Garmon,

359 U.S. 236, 242 (1959). “If the resolution of a state-law claim

depends upon the meaning of acollective bargaining agreement,

the application of state law (which might lead to inconsistent

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

are States) is pre-empted and federal labor-law principles-

necessarily uniform throughout the nation- must be employed

to resolve the dispute.” See Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399, 405-06 (1988), citing Allis-Chalmers Corp. v.

Lueck, 471 U.S. 202 (1985) and Teamsters v. Lucas Flour Co., 369

US. 95 (1962).

In Lingle, the plaintiff asserted a state law claim of workers

compensation retaliation in connection with her termination.

The employer raised pre-emption defensively since the

plaintiffs employment was governed by a collective bargaining

agreement. The trial court and the appellate court both

concluded the state law retaliation claim was pre-empted under

section 301, since her state law claim was “inextricably

intertwined” with the collective bargaining agreement. This

i.

Court reversed, finding that the state law claim was

“independent” of the collective bargaining agreement since

resolution of the claim did not require the courts to construe the

agreement. See Lingle, 486 U.S. at 407-08.

This Court has observed that purely factual questions

regarding the conduct of an employee and the conduct and

motivation of an employer do not require a court to interpret any

term of a collective bargaining agreement. Sée id at 407-08.

Whether the Defendant has offered a legitimate, nonretaliatory

reason for its decisions is a purely factual inquiry which does not

turn on the meaning of any provision of a collective-bargaining

agreement. See id. This Court has stated that with respect to 301

pre-emption, “...the mere fact that a broad contractual protection

against discriminatory or retaliatory discharge may provide a

remedy for conduct that coincidentally violates state law does

not make the existence or the contours of the state-law violation

dependent upon the terms of the private contract...In a typical

case, a state tribunal could resolve either a discriminatory or

retaliatory discharge claim without interpreting the “just cause”

language of a collective bargaining agreement.” See Lingle, 486

US. at 412-13.

This Court has recognized that “even if dispute resolution

pursuant to a collective bargaining agreement, on the one hand,

and state law, on the other, would require addressing precisely

the same set of facts, as long as the state-law claim can be

resolved without interpreting the agreement itself, the claim is

‘independent’ of the agreement for 301 pre-emption purposes.”

See Lingle, 486 U.S. at 409-10. “It would be inconsistent with

congressional intent under [301] to pre-empt state rules that

proscribe conduct, or establish rights and obligations,

independent of a labor contract.” See Allis-Chalmers Corp., 471

US. at 212.

Recent Fifth Circuit cases illustrate the same principle. In

Trevino v. Levi Strauss & Co., 197 F.3d 777 (5™ Cir. 1999), the

plaintiffs alleged workers compensation retaliation under state

law. Defendants asserted plaintiffs were terminated in

accordance with policies outlined in the collective bargaining

agreement. The Fifth Circuit held that the elements of retaliation

are purely factual in nature, since the issues are focused on the

employee's conduct and the employer's motivation. See id citing

Lingle, 486 U.S. at 407. Retaliation claims are similar to

discrimination claims, using the same burden shifting analysis

established to evaluate Title VII claims. In either type of case,

the factual inquiry focuses on motivation of the employer for its

decisions, whether retaliatory or discriminatory. Moreover, this

Court has specifically recognized that most discriminatory or

retaliatory discharge claims can be determined without

interpreting the “just cause” provisions of a collective bargaining

agreement.” See Lingle, 486 U.S. at 412-13.

The fact that the court would be required t« refer to

provisions of the collective bargaining agreement in the course

of the proceedings does not automatically result in preemption.

In Lividas v. Bradshaw, 512 US. 107 (1994) this Court observed

that in both Lueck and Lingle,

“we underscored the point that 301 cannot be

read broadly to pre-empt nonnegotiable rights

conferred on individual employees as a matter of

state law, and we stressed that it is the legal

character of a claim, as ‘independent’ of rights

under the collective bargaining agreement,

[citation omitted] (and not whether a grievance

arising from ‘precisely the same set of facts’ could

be pursued [citation omitted]) that decides

whether a state cause of action may go forward.

Finally, we were clear that when the meaning of

-10-

contract terms is not the subject of dispute, the

bare fact that a collective bargaining agreement

will be consulted in the course of state law

litigation plainly does not require the claim to be

extinguished.(citation omitted).”

With respect the second issue presented for review by the

Fifth Circuit, denial of a Motion for Leave to Amend a

Complaint is reviewed for abuse of discretion. Stripling v. Jordan

Production Co., LLC, 234 F.3d 863, 872 (5" Cir. 2000) citing

Whitmire v. Victus Ltd., 212 F.3d 885, 887 (5" Cir. 2000); Martin's

Herend Imports, Inc. v. Diamond Gem Trading U.S. Am. Co., 195

F.3d 765, 770 (5" Cir. 1999). In response to Defendants’ Motion

to Dismiss, Plaintiff filed a Motion for Leave to File Second

Amended Complaint and a Response to the Motion. The

District Court did not specifically rule on the Motion,

consequently the Motion was overruled by operation of law.

Under the well plead complaint rule, a Plaintiff is the master

| of her complaint. See Caterpillar, 482 U.S. at 398-99. As master of

her complaint, Plaintiff chose not to allege a §301 breach of

contract claim, although the District Court stated it would have

allowed her to amend her complaint if she had. Plaintiff's

Second Amended Complaint did allege additional causes of

action premised on the same facts and circumstances initially

plead, and re-plead one of the claims that the District Court had

dismissed without prejudice.

: Before granting or denying leave to amend, courts should

consider several factors including undue delay, bad faith or

dilatory motive, repeated failure to cure deficiencies, undue or

substantial prejudice to the opposing party, futility of

amendment, whether the claims are frivolous, and the nature of

the amendment. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct.

227, 230 (1962). In Foman, the court of appeals affirmed the

Sie

Oe

District Court’s denial of a Motion to Vacate a Judgment in order

to allow amendment of the complaint. This Court held that the

court of appeals erred in affirming denial, since the record

established that “the amendment would have done no more

than state an alternative theory of recovery.” See id at 182. The

Foman opinion states that the mandate of FRCP 15(a) to freely

allow amendments when justice so requires is to be heeded. If

the underlying facts or circumstances may be a proper subject of

relief, a plaintiff ought to be afforded an opportunity to test the

claims on the merits. See id. In Foman, the amendment was

sought after Judgment was entered, and at least under the facts

of that case, this Court found abuse of discretion in denying

leave to amend.

The Fifth Circuit has recognized that a District Court's

discretion to deny leave to amend pleadings is limited by FRCP

15(a) which requires that leave to amend shall be freely given

when justice so requires. See Stripling v. Jordan Production Co.,

LLC, 234 F.3d 863, 872 (5 Cir. 2000) citing Foman; and Leffall v.

Dallas Indep. Sch. Dist., 28 F.3d 521,524 (5" Cir. 1994). The Fifth

Circuit has stated that “in the context of motions to amend

pleadings, ‘discretion’ may be misleading, because Fed. R. Civ.

P. 15(a) ‘evinces a bias in favor of granting leave to amend.” See

Stripling, 234 F.3d at 872 citing Martin's Herend Imports, Inc. v.

Diamond & Gem Trading U.S. Am.Co., 195 F.3d 765, 770 (5® Cir.

1999). “Unless there is a ‘substantial reason to deny leave to

amend, the discretion of the district court is not broad enough to

permit denial.” See id citing Dussouy v. Gulf Coast Inv. Corp., 660

F.2d 594, 597 (5" Cir. 1981); and Martin's Herend Imports, Inc., 195

F.3d at 770.

Dismissal for Want of Prosecution

The notice of dismissal for want of prosecution (App 1-2) sent

to the District Court and copied to counsel of record states the

=12-

case was dismissed pursuant to 5th Cir. R. 42.3. However,

neither the order denying Petitioner’s motion to reinstate (App

3-4) the appeal nor the order denying Petitioner's motion for

reconsideration of the order denying Petitioner's motion to

reinstate the appeal (App 5-6) provide reasons or detail the basis

for denial. The dismissal of Petitioner's appeal for want of

prosecution effectively deprived Petitioner of a just

determination of her case. If the District Court incorrectly

determined that Petitioner’s state law discrimination claims

were pre-empted by §301 of the LMRA, then Petitioner should

be afforded an opportunity to present her state law claims on the

merits. The Clerk of the Court of Appeals failed to follow the

Fifth Circuit’s own rules which require notice and an

opportunity to cure a default before a case is dismissed on the

basis of failure to prosecute. Moreover, rule 42.3.1.1 specifically

prohibits the dismissal of an appeal if the default is cured within

15 days of the notice provided under that rule. Even though

Petitioner was never provided the notice required by rule

42.3.1.1, the default was timely cured when Petitioner's Brief and

Record Excerpts was filed with the Court of Appeals on April 19,

2002, the week following receipt of notice during a telephone

conversation that the case had already been dismissed for want

of prosecution.

Petitioner acknowledges and recognizes that the Fifth Circuit

Court of Appeals has authority to dismiss a case on the basis of

failure to prosecute. “The power to invoke this sanction is

necessary in order to prevent undue delays in the disposition of

pending cases and to avoid congestion in the calendars of the

District Courts.” See Link v. Wabash Railroad Co., 370 U.S. 626, 629

(1962). The Court of Appeals did not dismiss this case on the

basis of its inherent powers; the judgment issued as the mandate

specifically cited 5th Cir. R. 42.3 as the basis of dismissal.

In Link, the District Court dismissed a case for want of

At.

prosecution when counsel for Appellant failed to appear for a

pre-trial conference despite receipt of notice to appear. The

court found that counsel had failed to indicate ... a reasonable

reason for his nonappearance and dismissed the case for failure

to prosecute, and stated that the dismissal was based on the

court’s exercise of its inherent powers. See id 370 U.S. 626, 628-

29. The Court of Appeals affirmed in a divided vote.

In considering the appropriateness of the dismissal, this

Court found no abuse of discretion under the facts presented.

This Court observed that whether an order dismissing a case for

want of prosecution can stand on appeal is dependent on

whether the action taken is within the permissible range of the

court's discretion. See id at 633. This Court found that on the

facts presented in that case, the District Court articulated the

basis of its decision on the nonappearance of counsel at a

scheduled pre-trial conference, and on the inference from the

drawn-out history of litigation in the case, that the party had

been deliberately proceeding in a dilatory fashion. See id.

In Gonzalez v. Trininty Marine Group, Inc., 117 F.3d 894 (5"

Cir, 1997), the Fifth Circuit Court of Appeals considered similar

issues when the District Court dismissed Gonzalez’ suit as a

sanction for alleged discovery abuses pursuant to Fed. R. Civ.

Proc. 37(b) and pursuant to its inherent powers under Article Il.

The Fifth Circuit observed that review of the District Court's

order was for abuse of discretion, citing Chambers v. NASCO,

Inc., 501 U.S. 32, 35, reh’g denied 501 U.S. 1269 (1991).

The Fifth Circuit has observed that courts are vested with

inherent power “to manage their own affairs so as to achieve the

orderly and expeditious disposition of cases” citing Link v.

Wabash R. Co., 370 U.S. 626, 630 ((1962), and that this inherent

power includes the power of a court to control its docket by

dismissing a case as a sanction for a party’s failure to obey court

-14-

orders. See Gonzalez, 117 F.3d 894. The court further observed

that when a court invokes its inherent powers, they must be

exercised with “restraint and discretion,” and that dismissing a

case with prejudice is a harsh sanction. The court noted that

involuntary dismissals will be upheld unless there is an abuse of

discretion. The Fifth Circuit then noted that it had previously

held dismissal of a case as a sanction should be confined to

instances of “bad faith or willful abuse of the judicial process”

citing In Re United Markets Int'l, Inc., 24 F.3d 650, 654 (5th Cir.)

cert denied, 513 U.S. 946 (1994); Pressey v. Patterson, 898 F.2d 1018,

1021 (5th Cir. 1990).

The Gonzalez opinion recognizes that dismissal with

prejudice is an “extreme sanction that deprives a litigant of the

opportunity to pursue his claim, and that a district court is

required to impose the least severe sanction available,” citing

Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1519

(5th Cir. 1985); Carroll v. Jaques Admiralty Law Firm, 110 F.3d 290

(5th Cir. 1997). In ruling on the District Court's dismissal of the

entire case as a sanction, the Fifth Circuit reversed and

remanded the case to the District Court, recognizing that

although a court may invoke its inherent powers, the Fifth

Circuit requires the least onerous sanction which will address

the offensive conduct. See Gonzalez, 117 F.3d 894.

Even though Petitioner's suit was dismissed under Sth Cir.

R. 42.3 for want of prosecution, the effect of the dismissal

amounts to the most extreme sanction and operates to deprive

Petitioner of the opportunity to pursue her claim on the merits.

Moreover, the Fifth Circuit has not articulated any basis or

reasons for denying Petitioner’s Motion to Reinstate Appeal, or

in denying her Motion for Reconsideration. Respondents did

not move for dismissal on the basis of failure to prosecute. The

case was dismissed on the appellate court’s own initiative.

Moreover, there was no significant delay in the proceedings at

-15-

the appellate court, since the briefing schedule, although never

received by counsel for Petitioner, set the deadline for filing the

Brief and Record Excerpts for April 1, 2002; the case was

dismissed for want of prosecution on April 11, 2002; counsel for

Petitioner discovered the case had been dismissed on April 12,

2002, and filed a Motion to Reinstate on that same date.

Petitioner's Brief and Record Excerpts was filed with the

appellate court on April 19, 2002.

Under the facts of this case, dismissal of Petitioner's case for

failure to prosecute violates the principles applicable to the

exercise of a court's inherent powers and was directly contrary

to the Fifth Circuit rule applicable to dismissal for want of

prosecution when a party is represented by counsel. The

appellate court did not exercise restraint and discretion, and did

not impose the least onerous sanction to address the failure to

timely file Petitioner's Brief and Record Excerpts. 5th Cir. R.

43.2.1.1 specifically provides in part “that if after notice, the

default is cured within 15 days, the clerk must not dismiss the

appeal and may refer to the court the matter of disciplinary

action against the attorney...” (Emphasis added).

When a litigant’s access to the courts is denied under the

circumstances presented in the instant case, the fairness of our

Petitioner deserves the opportunity to present her case on the

merits for review and consideration. The Court of Appeals’

dismissal of Petitioner’s appeal for want of prosecution and in

failing to follow 5th Cir. R. 425 constitutes a significant

departure from the accepted and usual course of proceedings,

and calls for the exercise of this Court’s supervisory power.

CONCLUSION

The Fifth Circuit Court's failure to follow its own rules, and

then in dismissing the appeal despite that the default was timely

-16-

cured constitutes a significant departure from the accepted and

usual course of proceedings. Petitioner prays that this Court

exercise its supervisory power over the Fifth Circuit Court of

Appeals, and Order the Court of Appeals to reinstate Petitioner's

appeal. Petitioner prays for such other and further relief to

which she may be justly entitled, at law or in equity.

Respectfully submitted,

REGINA BACON CRISWELL

Counsel of Record

Carriage Place

P.O. Box 1399

Helotes, Texas 78023-1399

(210) 543-8940

RENE RODRIQUEZ

433 S. Tancahua

Corpus Christi, Texas 78401

882-1919

Texas State Bar No.: 01496580

ATTORNEYS FOR PETITIONER

Ai?

Appendix

Notice of Dismissal for Want of Prosecution............. 1-2

Order Denying Motion to Reinstate Appeal.............. 3-4

Order Denying Motion for Reconsideration of Order Denying

Motion to Reinstate Appeal ............. 0c cece e cence 5-6

Order Denying Motion to Remand and Dismissing Certain

Claims

aan 2

United States Court of Appeais

FIFTH CIRCUIT

OFFICE OF THE CLERK

CHARLES R. FULBRUGE III TEL. 504-310-7700

CLERK 600 CAMP STREET

NEW ORLEANS, LA 70130

April 11, 2002

Mr. Michael N Milby, Clerk

Southern District of Texas, Corpus Christi

United States District Court

1133 !. Shoreline Boulevard

Corpus Christi, Texas 78401

No. 02-40126 Frost v. Harper

USDC No. C-01-CV-69

Enclosed is a certified copy of the judgment issued as the

mandate. Record/original papers/ exhibits to be returned.

Sincerely,

CHARLES R. FULBRUGE, Ill, Clerk

By:

Jodi Rodrigue, Deputy Clerk

/jt -

cc: w/encl:

Ms. Regina Bacon Criswell

Mr. Rene Daniel Rodriguez

Mr. Stanley Weiner

P.S. to Ms. Criswell: Please return the 3 volume record on appeal

to this office as soon as possible.

MDT-1

App -1-

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-40126

ANGIE FROST

Plaintiff-Appellant U.S. COURT OF APPEALS

v. FILED

APR 11 2002

JOHN HARPER; CHARLES R. FULBRUGE Ill

MICHAEL “ MIKE” SIDES; CLERK

ROBERT JOSEPH KOSTELINK;

CITGO REFINING AND CHEMICALS COMPANY LP

Defendants-Appellees

Appeal from the United States District Court for the

Southern District of Texas, Corpus Christi

CLERK’S OFFICE:

Under 5th Cir. R. 42.3, the appeal is dismissed as of April 11,

2002 for want of prosecution. The appellant failed to timely file brief

and record excerpts.

CHARLES R. FULBRUGE Iii

Clerk of the United States Court

of Appeals for the Fifth Circuit

By: /S/

Jodi Rodrigue, Deputy Clerk

FOR THE COURT-BY DIRECTION

DIS-S

App -2-

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

CHARLES R. FULBRUGE III TEL. 504-310-7700

CLERK 600 CAMP STREET

NEW ORLEANS, LA 70130

May 7, 2002

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 02-40126 Frost v. Harper

USDC No. C-01-CV-69

Enclosed is an order entered in this case.

Sincerely,

CHARLES R. FULBRUGE, II, Clerk

By: /S/

Peter Conners, Deputy Clerk

504-310-7685

/ pac

Ms. Regina Bacon Criswell

Mr. Stanley Weiner

P.S. to Ms. Criswell: In light of the attached order, it is necessary

for you to advise this office, within 15 days, what means, if any

you will take to have the unfiled brief and record excerpts

returned to you. If no response is received within 15 days, the

briefs and record excerpts will be recycled.

MOT-2

App -3-

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-40126

ANGIE FROST

Plaintiff-Appellant U.S. COURT OF APPEALS

v. FILED

MAY 7 2002

JOHN HARPER; CHARLES R. FULBRUGE III

MICHAEL “MIKE” SIDES; CLERK

ROBERT JOSEPH KOSTELINK;

CITGO REFINING AND CHEMICALS COMPANY LP

Defendants-Appellees

Appeal from the United States District Court for the

Southern District of Texas, Corpus Christi

ORDER:

IT IS ORDERED that appellant's motion to reinstate the appeal

is DENIED.

/S/

JACQUES L.WIENER, JR.

UNITED STATES CIRCUIT JUDGE

App +4

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

CHARLES R. FULBRUGE III TEL. 504-310-7700

CLERK 600 CAMP STREET

NEW ORLEANS, LA 70130

June 18, 2002

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 02-40126 Frost v. Harper

USDC No. C-01-CV-69

Enclosed is an order entered in this case.

Sincerely,

CHARLES R. FULBRUGE, III, Clerk

By: /S/

Mary Ann Lopiparo, Deputy Clerk

504-310-7684 .

Ms. Regina Bacon Criswell

Mr. Stanley Weiner

P.S. to Ms. Criswell: In light of the attached order, it is necessary

for you to advise this office, within 15 days, what means, if any

you will take to have the unfiled brief and record excerpts

returned to you. If no response is received within 15 days, the

briefs and record excerpts will be recycled.

MOT-2

App -5-

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-40126

ANGIE FROST

Plaintiff-Appellant U.S. COURT OF APPEALS

v. FILED

JUN 18 2002

JOHN HARPER; CHARLES R. FULBRUGE III

MICHAEL “MIKE” SIDES; CLERK

ROBERT JOSEPH KOSTELINK;

CITGO REFINING AND CHEMICALS COMPANY LP

Defendants-Appellees

Appeal from the United States District Court for the

Southern District of Texas, Corpus Christi

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges

BY THE COURT:

IT IS ORDERED that Appellant’s motion for Leave to file out of

time the motion for reconsideration is GRANTED.

A member of this panel previously denied Appellant's motion to

reinstate the appeal. The panel has considered Appellant's motion for |

reconsideration. IT IS FURTHER ORDERED that the motion is

DENIED.

App -6-

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

ANGIE FROST, § United States District Court

§ Southern District of Texas

Plaintiff, § Entered

§ MAR 23 2001

v. § Michael N. Milby, Clerk of Court

§ :

JOHN HARPER, MICHAEL § CIVIL ACTION NO. C-01-069

“MIKE” SIDES, ROBERT §

JOSEPH KOSTELNIK, AND §

CITGO REFINING AND 3

CHEMICAL COMPANY, LP §

§

Defendants. §

ORDER DENYING M TO REM A

DISMISSIN

Pending before the Court is Plaintiff's Motion to Remand.

For the reasons set forth below, the Court will deny the

motion. Additionally, the Court will dismiss certain of

Plaintiff's causes of action for failure to state a claim upon

which relief may be granted.

I, JURISDICTION

Pursuant to 28 U.S.C. §1331, this Court has federal question

jurisdiction over this action because Plaintiff's causes of action

are preempted by §301 of the Labor Management Relations

Act, 29 U.S.C. §1985(a).

App. -7-

Il. FACTS

This is an employment dispute. In her First Amended

Petition, Plaintiff alleges that she was employed by CITGO

Refining and Chemicals Company (the “Company”) for

approximately 17 years with no record of disciplinary action.

In 1999, however, Plaintiff was suspended without pay

pending an investigation by the Company to determine

whether Plaintiff had “abused” two days of sick leave. On

January 12, 2002, the Company terminated Plaintiff, asserting

as grounds that she had not cooperated with the investigation.

Plaintiff appealed the termination through a grievance

process, and the mater eventually was submitted to arbitration

pursuant to the Collective Bargaining Agreement (CBA) that

the Company executed. In November 2000, the arbitrator

rendered his opinion upholding Plaintiff's termination.

Plaintiff sues the company, Michael Sides, John Harper, and

Robert Joseph Kostelink. All three individuals, agents of the

company, appear to have been supervisors or managers.

Plaintiff alleges that the arbitrator rendered his decision “in

whole in substantial part on the written statements and

testimony of Defendants Hong Harper and Michael ‘Mike’

Sides.” Plaintiff alleges that Mr. Sides and Mr. Harper

“carried out a scheme to doctor testimony and suborn

perjury.”

Plaintiff asserts the following causes of action: against all

Defendants, civil conspiracy to terminate her because of her

vocal advocacy against sexual harassment and her active

union activity; against the three individuals, fraud, in that

Defendants Sides and Harper lied “for the purpose of

inducing Defendant CITGO to terminate Plaintiff;” against the

three individuals, intentional infliction of emotional distress;

against the Company, breach of the Collective Bargaining

Agreement; against Defendants Sides and Harper, malicious

App. -8-

prosecution; against all Defendants, abuse of process; against

the three individuals, tortuous interference with a contractual

relationship; against all Defendants, violations of the Texas

Labor Code, in that they discriminated against her based on

age, race, and sex. Plaintiff seeks actual and exemplary

damages.

The Defendants removed the action, arguing that Plaintiff's

claims are preempted. by federal law. Plaintiff has moved for

remand.

Ill. DISCUSSION :

Sua sponte motion for dismissal

The Court may dismiss a claim on its own initiative for

failure to state a claim where the inadequacy of the claim is

apparent as a matter of law. Guthrie v. Tifco Indus., 941 F.2d

374, 379 (5™ Cir. 1991), cert. denied, 503 U.S. 908, 112 S.Ct. 1267

(1992); Shawnee Int’ N.V. v. Hondo Drilling Co,, 742 F.2d 234,

236 (5™ Cir. 1984). The Court finds that several of Plaintiff's

claims are inadequate as a matter of law.

Civil Conspi

There are two essential elements to establish an actionable

civil claim for civil conspiracy under Texas law: (1) there must

be an unlawful purpose by two or more persons; and (2) there

must be at least one unlawful or overt act. McLean v.

International Harvester Co., 817 F.2d 1214, 1220 (Sth Cir. 1987)

(citing Massey v. Armco Steel Co, 652 S.W.2d 932, 934 (Tex.

1983)). To establish a civil conspiracy, a plaintiff must be able

to show, inter alia, a meeting of the minds of two or more

person on the object or course of action. Id, at 934. The

unlawful acts asserted by Plaintiff are the material

misrepresentations by Messrs. Sides and Harper to the

App. -9-

arbitrator during her appeal of her termination; Plaintiff

claims that these individuals, as well as Mr. Kostelnik and the

Company, conspired to obtain her dismissal. However, the

acts of a corporate agent are the acts of the corporation, and a

corporation cannot conspire with itself. Elliott v. Tilton, 89

F.3d 260, 264-265 (5th Cir. 1996) (citing Fojtik v. First National

Bank, 752 S.W.2d 669, 673 (Tex.App. --Corpus Christi 1988,

writ denied)). “As a matter of law, a corporation or other

company cannot conspire with itself, no matter how many of

its agents participate in the complained of action." Id, (citing

Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 5 (Tex.App.—Corpus

Christi 1991, no writ)).

The only people alleged by Plaintiff to have participated in

the conspiracy were Messrs. Harper, Sides, and Kostelnik and

the Company. Thus, all alleged co-conspirators either were the

Company or were agents of the Company. Accordingly,

Plaintiff has failed to state a claim of civil conspiracy, because

there essentially is only one actor. See Elliott v.Tilton, supra.

Fraud

In Texas, the "elements of actionable fraud are: (1)

Misrepresentation of a material fact; (2) with intention to

induce action or inaction; (3) reliance by the Plaintiff; and (4)

damage." Hennigan v. Harris County, 593 S.W.2d 380, 383

(Tex.Civ.App.—Waco 1979, no writ) (emphasis supplied). In

essence, Plaintiff has alleged that Harper and Sides

misrepresented material information to the arbitrator and that

the misrepresentations led the arbitrator to uphold her

termination. Plaintiff has not alleged and admittedly cannot

allege that she relied on any misrepresentation by the

Defendants. Accordingly, Plaintiff has failed to state a claim

for fraud.

App. -10-

Malicious P :

There are six elements to establish the tort of malicious

prosecution of a civil claim: (1) the institution or continuation

of civil proceedings against the plaintiff; (2) by or at the

insistence of the defendant; (3) malice in the commencement

of the proceeding; (4) lack of probable cause for the

proceeding; (5) termination of the proceeding in plaintiff's

favor; and (6) special damages. Texas Beef Cattle Co. v. Green,

921 S.W.2d 203, 207 (Tex. 1996). Without even considering

whether a claim for malicious prosecution lies for institution

of termination proceedings under an employment contract,

the proceeding did not terminate in Plaintiff's favor. Plaintiff

alleges that this does not matter, because a finding in her favor

would have been “an impossibility. . . because of the false

testimony and evidence presented. . ." but Plaintiff cites no

authority that would allow a plaintiff to maintain a malicious

prosecution claim on that ground. Because Plaintiff has not

alleged, and admittedly cannot allege, that the proceeding

terminated in her favor, her claim must fail as a matter of law.

A cause of action for tortious interference with a contract

is established upon a showing that (1) a contract existed

between the plaintiff and a third party that was the subject of

interference; (2) the defendant's act of interference was willful

and intentional; (3) the intentional act of the defendant was a

proximate cause of damage to the plaintiff; and (4) actual

damage and loss to the plaintiff resulted. Victoria Bank &

Trust Co, v. Brady, 811 S.W.2d 931, 939 (Tex. 1991). Plaintiff's

claim for tortious interference fails because she is alleging that

Harper, Sides, and Kostelnik tortiously interfered with her

contract with CITGO. The problem with this claim is that all

three of these individuals were acting as agents for CITGO; in

essence, she is claiming that CITGO tortiously interfered with

App. -11-

its own contract.

As a general rule, the actions of a corporate agent on

behalf of the corporation are deemed the corporation's acts.

Holloway _v. Skinner, 898 S.W.2d 793, 795 (Tex. 1995). In

Holloway, the Texas Supreme Court noted, "To establish a

prima facie case under such circumstances, the alleged act of

interference must be performed in furtherance of the

defendant's personal interests so as to preserve the logically

necessary rule that a party cannot tortiously interfere with its

own contract. We hold that to meet this burden in a case of

this nature, the plaintiff must show that the defendant acted in

a fashion so contrary to the corporation's best interests that his

actions could only have been motivated by personal interests.”

Id., 898 S.W.2d at 796.

Plaintiff's complaint fails to allege that Harper, Sides,

and Kostelnik acted in any capacity other than their capacity

as agents of the Company. Plaintiff has not alleged that these

individuals were motivated by any cognizable personal

interest. Accordingly, the Court finds that Plaintiff has failed

to state a claim for tortious interference with a contract.

Preempted

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

"if the resolution of a state-law claim depends upon the

meaning of a collective-bargaining agreement" the state-law

claim is preempted. Lingle v. Norge Division of Magic Chef.

Inc., 486 U.S. 399, 405-06, 108 S. Ct. 1877, 1881-84 (1988); Allis-

Chalmers corp. v. Lueck, 471 U.S. at 208-10, 105 S. Ct. at 1909-

11 (1985). See also, Avco Corp. v. Aero Lodge No. 735 Int'l

Assoc. of Machinists and Aerospace Workers, 390 U.S. 557, 88

S. Ct. 1235 (1968). "The critical inquiry concerns the necessity

of looking to the terms of a collective- bargaining agreement to

resolve a state law claim. Section 301 governs claims founded

App. -12-

directly on rights created by collective-bargaining agreements,

and also claims substantially dependent on analysis of a

collective-bargaining agreement." Baker v. Farmers Elec. Co-

op, Inc., 34 F.3d 274, 280 (Sth Cir. 1994) (internal quotations

omitted) (quoting Caterpillar. Inc. v. Williams, 482 U.S. 386,

391-392, 107 S. Ct. 2425, 2430 (1987)). If the alleged conduct

arises out of activities discussed in the collective bargaining

agreement, courts generally hold that the claim is preempted;

if the agreement would not condone the activity, there is no

preemption. Id, at 280-81. See e.g., Perugini v. Safeway Stores.

Inc., 935 F.2d 1083 (9th Cir. 1991) (reversing finding of

preemption of emotional distress claim); Brown _v.

Southwestern Bell Tel. Co., 901 F.2d 1250 (Sth Cir. 1990)

(upholding a finding of preemption of an emotional distress

claim); Strachan v. Union Oil Co., 768 F.2d 703 (Sth Cir. 1985)

(affirming the preemption of state tort claim arising out of the

suspension and drug testing of employees).

If the resolution of a state-law claim depends upon the

meaning of a collective bargaining agreement (CBA), the

application of state law is preempted. Trevino v. Ramos, 197

F.3d 777, 779 (5th Cir. 1999). Even if a claim implicates a CBA,

however, preemption is not required if it only tangentially

involves provisions of the agreement. Id, 197 F.3d at 780.

"(T]he bare fact that a collective-bargaining agreement will be

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

require the claim to be extinguished." Id., (quoting Livadas v.

Bradshaw, 512 U.S. 107, 123, 114 S. Ct. 2068 (1994). Moreover,

a plaintiff's state law claims will not be preempted even

though "intertwined" with a CBA, so long as they are not

"inextricably intertwined" with it. Id, (quoting Jones _v.

Roadway Express, Inc., 931 F.2d 1086, 1089 (5th Cir. 1991).

Case law demonstrates, that whether a claim requires

interpretation of a CBA requires the Court to look at each of

the legal elements of the claim and determine whether that

App. -13-

‘element can be addressed only by interpreting some provision

of the CBA. See, e.g., Reece v. Houston Lighting & Power Co.,

79 F.3d 485, 487 (5th Cir. 1996) (analyzing Texas Labor Code

} claims); Trevino v. Ramos, 197 F.3d at 779-780 (same).

With these principles in mind, the Court will turn to each of

Plaintiff's remaining claims.

Intentional Infliction of Emotional Distress

| To prevail in a suit for intentional infliction of emotional

| distress in Texas, a plaintiff must show: (1) intentional or

reckless conduct; (2) that is extreme or outrageous; (3) that

caused emotional distress; and (4) that was severe in nature.

Burden v. General Dynamics Corp,, 60 F.3d 213, 218 (5th Cir.

1995). The Fifth Circuit appears to have adopted a rule in

which any emotional distress claim in the employment

context is preempted if there is a CBA. See Stafford v. True

Temper Sports, 123 F.3d 291, 296 (5th Cir. 1997) (because

allegedly outrageous actions were taken in context of

employment dispute, they were preempted by LMRA); see

also Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633

(Sth Cir. 1994). The court pointed out, "in situations such as

this, it is appropriate for a court to look at the collective

bargaining agreement to see if an employer's actions are

| reasonable." In Burgos, supra, the Fifth Circuit cited with

| | approval a Fourth Circuit case finding that an intentional

| | infliction of emotional distress claim was preempted, where

| part of the outrageous conduct alleged was treatment of the

plaintiffs personal property. McCormickv. AT& T

| Technologies, Inc., 934 F.2d 531 (4th Cir.1991) (en banc), cert. |

denied, 502 U.S. 1048, 112 S.Ct. 912 (1992). The Fourth Circuit

held that the circumstances that must be considered in

examining management's conduct are not merely factual,

but contractual, and the collective bargaining agreement is a

crucial component of these circumstances. Id,, 934 F.2d at

App. -14-

—————<« tl i ks

‘595-536. The Fifth Circuit agreed with this holding. Burgos,

20 F.3d at 636.

In the instant case, Plaintiff complains not merely that

the individual defendants’ false.statements were extreme -

and outrageous, but that they were outrageous "because

these Defendants knew that false and perjured statements :

would not only substantiate Plaintiff's termination but also :

prevent any reasonable expectation of reinstatement through |

the grievance process." Plaintiff's First Amended Petition at

5. To prove this allegation, Plaintiff will have to show that

the Defendants' conduct caused her termination and

prevented her reinstatement, which would require the Court

to delve into the propriety of the termination under the CBA.

The claim is preempted under the reasoning of the Burgos ’

case, supra.

The fact that the claim is asserted against individual

defendants does not help Plaintiff. In v

34 F.3d 274, 283-284 (Sth Cir. 1994), the Fifth

Circuit noted that, where a claim in inextricably intertwined

with a collective bargaining agreement, the status of some of

the defendants as individuals does not defeat preemption.

Breach of Contract

Plaintiffs breach of contract claim is indisputably

preempted. Plaintiff alleges that CITGQ entered into a

Collective Bargaining Agreement, but that CITGO breached

that agreement by failing to provide her a fair and impartial

arbitration agreement. This claim is directly related to the

CBA and is, therefore, preempted.

Abuse of Process

In order for a person to recover for abuse of process, he

App. -15-

‘must plead and prove three essential elements: 1) that the

defendant made an illegal, improper, or perverted use of the

process, a use neither warranted nor authorized by the

process; 2) that the defendant had an ulterior motive or

purpose in exercising such illegal, perverted or improper use

of the process; and 3) that damage resulted to the plaintiff as

a result of such irregular act. Martin v. Trevino, 578 S.W.2d

763, 769 (Tex.Civ.App. - Corpus Christi 1979, writ ref'd,

n.r.e.). "In a narrow sense process refers to individual writs

issued by the court during or after litigation. Process has

been broadly interpreted to encompass the entire range of

procedures incident to litigation. Black's Law Dictionary,

1370 (4th Ed. 1951). The gravamen of an action for abuse of

process is the misuse of process, whether properly or

improperly obtained, for any purpose other than that which

it-was designed to accomplish." Id. Plaintiff's claim for

abuse of process stands on shaky ground, because she does

not complain about "process" in either the narrow or broad

sense described in Martin v. Trevino. She is complaining

about a private proceeding instituted by her employer

pursuant to a private contract. There was no litigation

involved, and no court issued any writ. Even if abuse of

arbitration proceedings could fall within the ambit of a claim

for “abuse of process," however, this claim is preempted,

because such claims "implicate both procedural and

substantive aspects of the CBA grievance provisions, and

thus also fall within Section 301 preemption under the

LMRA." Johnson _v. Health Management Systems _of

America, 96 F.Supp.2d 711(E.D.Mich. 2000) (finding claim of

"abuse of process" preempted where the plaintiff

complained about the manner in which the employer carried

out the grievance procedure defined by a CBA).

Discriminatio

In Reece v. Houston Lighting & Power Co,, 79 F.3d 485,

App. -16-

'487 (5th Cir. 1996), the Fifth Circuit examined an employee's

claim of discrimination under the Texas Labor Code. The

Fifth Circuit noted, "Reece's discrimination claim turns on

questions of promotion, seniority, and assignment to

training programs, all of which are provided for in the CBA.

HL & P will undoubtedly rely on the CBA as its legitimate,

non- discriminatory reason for Reece's treatment. When

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

pretextual, the CBA would have to be interpreted because

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

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

by an employer defense." (Citations and internal quotation

marks omitted). In the instant case, Plaintiff asserts that

"adverse employment actions" (presumably, her

termination) were taken against her because of her race, age,

and sex. When she attempts to demonstrate this, CITGO will

point to the CBA, which includes provisions regarding abuse

of sick leave and reserving to the company the right to

discipline employees, as part of its non-pretextual reason for

dismissal. This will require the Court to look into the CBA to

determine whether the claim of abuse of sick leave was

pretextual. Plaintiff's discrimination claim, therefore, is

preempted.

Remov ed

Under the well-pleaded complaint rule, federal

preemption is generally a defensive issue that does not

authorize removal of a case to federal court. However, in

390 U.S. 557, 88 S.Ct. 1235, 1237, (1968), the Supreme Court

held that because state actions for breach of collective

bargaining agreements were preempted by section 301 of the

Labor Management Relations Act of 1947 (LMRA), 29 U.S.C.

§ 185, the federal court had removal jurisdiction. In

Franchise Tax d v. Construct rers Vacation

App. -17-

Trust, 463 U.S. 1, 103 S.Ct. 2841, 2853-54 (1983), the Court

explained that because "the preemptive force of § 301 is so

powerful as to displace entirely" state actions for breach of a

collective bargaining agreement, any such action "is purely a

creature of federal law, notwithstanding the fact that state

law would provide a cause of action in the absence of § 301."

The Court further stated: "Avco stands for the proposition

that if a federal cause of action completely preempts a state

cause of action any complaint that comes within the scope of

the federal cause of action necessarily ‘arises under’ federal

law." 103 S.Ct. at 2854. Even though Defendants have raised

preemption as a defensive issue, the case is removable if any

of Plaintiff's claims are preempted as a matter of law. See

Willy v. Coastal Corp. 855 F.2d 1160,1165 (5" Cir. 1988).

The fact that Plaintiffs remaining claims are preempted by

§301 of the LMRA provides the necessary federal question

jurisdiction for removal of this case. Accordingly, Plaintiff's

motion for remand must be denied.

IV. CONCLUSIONS

Plaintiff's claims for civil conspiracy, fraud, malicious

prosecution, and tortious interference with a contractual

relationship are DISMISSED, without prejudice, for failure

to state a claim upon which relief may be granted. Plaintiff's

claims for intentional infliction of emotional distress, breach

of contract, abuse of process, and discrimination under the

Texas Labor Code are preempted by the Labor Management

Relations Act, and the Court has jurisdiction over those

claims. Plaintiff's motion for remand is DENIED.

Signed this day of March, 2001.

/S/

JANIS GRAHAM JACK

UNITED STATES DISTRICT JUDGE

App. -18-

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

CORPUS CHRISTI DIVISION

ANGIE FROST, § United States District Court

§ Southern District of Texas

Plaintiff, § Entered

§ MAR 23 2001

V. § Michael N. Milby, Clerk of Court

§

JOHN HARPER, MICHAEL § CIVILACTION NO. C-01-069

“MIKE” SIDES, ROBERT §

JOSEPH KOSTELNIK, AND §

CITGO REFINING AND §

CHEMICAL COMPANY, LP §

:

Defendants. §

ORDER GRANTIN I DISMI

On this day came on to be considered Defendants’

John Harper, Michael “Mike Sides, Robert Joseph Kostelnk

and Citgo Refining and Chemicals Company, LP

(collectively, “Defendants”) Motion to Dismiss. For the

reasons set forth below, the Court will GRANT the motion.

Plaintiff's causes of action are preempted by §301 of the

Labor Management Relations Act (“LMRA"), 29 US.C. §

1985 (a). Therefore, this Court has federal question

jurisdiction over this action pursuant to 28 U.S.C. § 1331.

Il. FACTS

This is an employment dispute. In her First Amended

Petition, Plaintiff alleges that she was employed by CITGO

App. -19-

‘Refining and Chemicals Company (the “Company”) for

approximately 17 years with no record of disciplinary action.

In 1999, however, Plaintiff was suspended without pay

pending an investigation by the Company to determine

whether Plaintiff had “abused” two days of sick leave. On

January 12, 2002, the Company terminated Plaintiff,

asserting as grounds that she refused to cooperate with the

investigation. Plaintiff appealed the termination through a

grievance process, and the mater eventually was submitted

to arbitration pursuant to the Collective Bargaining

Agreement (“CBA” that the Company executed. An

arbitration hearing was held on August 17-18, 2000 and on

November 27, 2000 the arbitrator denied Plaintiff's

grievance.

Plaintiff alleges that the arbitrator rendered his

decision “in whole or in substantial part on the written

statements and testimony of Defendants John Harper and

Michael “Mike” Sides.” Plaintiff alleges that Mr. Sides and

Mr. Harper “carried out a scheme to doctor testimony and

suborn perjury.”

Plaintiff asserted the following causes of action:

against all Defendants, civil conspiracy to terminate her

because of her vocal advocacy against sexual harassment

and her active union activity; against the three individuals,

fraud, in that Defendants Sides and Harper lied “for the

purpose of inducing Defendant CIT GO to terminate

Plaintiff;” against the three individuals, intentional infliction

of emotional distress; against the Company, breach of the

Collective Bargaining Agreement; against Defendants Sides

and Harper, malicious prosecution; against all Defendants,

abuse of process; against the three individuals, tortuous

interference with a contractual relationship; against all

Defendants, violations of the Texas Labor Code, in that they

discriminated against her based on age, race, and sex.

App. -20-

Plaintiff seeks actual and exemplary damages.

The Defendants removed this action, arguing that

Plaintiff's claims are preempted by federal law pursuant to

§301 of the LMRA and §8 of the NLRA. Plaintiff moved for

remand to state court asserting that her claims are not

preempted. This Court denied Plaintiff's motion for remand

and sua sponte dismissed Plaintiff's claims of fraud, civil

conspiracy, malicious prosecution and tortuous interference.

The Court also ruled that Plaintiff's claims for intentional

infliction of emotional distress, breach of contract, abuse of

process and discrimination were preempted by §301 of the

LMRA. Defendant has filed a Motion to Dismiss as well as a

Motion for Summary Judgment and a Response to

Defendant's Motion to Dismiss.

Ill. DISCUSSION

A. STANDARD OF REVIEW

Rule 12 (b) (6) of the Federal Rules of Civil Procedure

authorizes the court to dismiss claims on the basis of

dispositive law. Neitzke v. Williams, 490 U.S. 319, 326 109

S.Ct. 1827, 1832 (1989). The motion dismiss for failure to

state a claim is viewed with disfavor and rarely granted.

Kaiser Aluminum & Chem. Sales, Inc, 677 F.2d at 1050. _

When ruling on a 12 (b) (6) motion to dismiss, the Court

must accept the plaintiff's factual allegations as true, and

view these allegations in a light most favorable to the

plaintiff. Capital Parks, Inc. v. Southeastern Advertising &

Sales Sys., 30 F.3d 627, 629 (5" Cir. 1994); Cinel v. Connick,

15 F.3d 1338, 1341 (5% Cir.1994); O’Quinn v. Manuel, 773

F.2d 605, 60-8 (5 Cir. 1985). In a 12 (b) (6) motion, the Court

should not look beyond the pleadings. McCartney v. First

City Bank, 970 F.2d 45, 47 (5™ Cir. 1992).

A 12 (b) (6) motion should not be granted “unless it

App. -21-

appears beyond a doubt that the plaintiff can prove no set of

facts in support of his claims which entitle him to relief.”

Conley v. Gibson, 335 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957);

Mitchell v. McBryde, 944 F.2d 229, 230 (5" Cir. 19910. The

question before the Court in examining a 12 (b) (6) motion is

whether the plaintiff's complaint states any valid claim for

relief. Conley v. Gibson, 335 U.S. 41, 45-46, 78 S.Ct. 99, 102

(1957); Lowrey v. Texas A&M Univ, System, 117 F.3d 242 e*

Cir. 1997); Mitchell v. McBryde, 944 F.2d 229, ere

1991).

Since federal courts simply require “notice pleadings,”

the Court construes Plaintiff's pleading liberally, and lack of

detail does not constitute a sufficient ground to dismiss a

complaint under Rule 12 (b) (6). Strauss v, City of Chicago,

760 F.2d 765, 767 (7" Cir. 1985); Letisha A. By Murphy v.

Morgan, 855 F. Supp. 943, 947 (M.D. Ill. 1994); Harris v.

O'Grady, 803 F. Supp. 1361, 1364 (N.D. Ill. 1992).

B. SECTION 301 OF THE LMRA

1. General Principles

Section 301 of the LMRA provides jurisdiction and

remedies for an individual employee to enforce rights and

challenge violations of a labor contract between the

employer and the union. v

Stevedoring Co., 880 F.2d 846, 850 (5" Cir. 1989). Section 301

entirely displaces state law causes of action for violation of a

collective bargaining agreement. Medrano v. Excel Corp.,

985 F.2d 230, 232 (5" Cir. 1993) (citing United Steelworkers v.

Rawson, 495 U.S. 362, 368 110 S.Ct. 1904, 1909, 109 L.Ed.2d

362 (1990). Additionally, when a state tort claim cannot be

resolved without interpreting a provision of a collective

bargaining agreement, the application of state law is

preempted and federal law is applied. Lingle v. Norge Div.

Of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877,

App. -22-

1881, 100 L.Ed.2d 410 (1988).

After sua sponte dismissal of several of Plaintiff's claims,

the Court determined that Plaintiff's remaining claims for

intentional infliction of emotional distress, breach of

contract, abuse of process, and discrimination were

completely preempted by §301. (See Order Denying Motion

to Remand and Dismissing Certain Claims Dated March 21,

2001.) The Court concluded that the resolution of each of

these claims would require the Court to interpret the

Collectjve Bargaining Agreement. See id.

The inquiry into Plaintiff's claims against Defendant does

not end with the determination that the claims are

completely preempted by §301 of the LMRA. When Section

301 completely displaces a state-law claim, that claim can

then be brought as a breach of labor contract under §301.

_ Thomas vy. LTV Corp, 39 F.3d 611, 621-622 (5" Cir. 1994). In

Allis-Chalmers Corp. v. Lueck, the Supreme Court held that

“when resolution of a state-law claim is substantially

dependent upon an analysis of the terms of an agreement

made between the parties in a labor contract, that claim must

either be treated as a §301 claim or dismissed as preempted

by federal labor-contract law.” 471 U.S. 202, 220 (1985).

To state a claim under §301, Plaintiff must demonstrate

both that she has exhausted all contractual remedies

provided for under the terms of the CBA and that the union

breached its duty of fair representation in the grievance and

arbitration proceedings. | DelCostello v. International

Brotherhood of Teamsters, 462 U.S. 151, 164-165 (1983).

Suits under §301 normally comprise two causes of action;

first, where the employees alleges the employer breached the

collective-bargaining agreement and second, where the

employee claims that the union breached its duty of fair

representation. Reed v. United Transp. Union, 488 U.S. 319,

App. -23-

328, 109 S.Ct. 621, 627, 102 L.Ed.2d 665 (1989). The employee

may choose to sue either defendant or both, but the case to

be proven contains the same two elements. DelCostello, 462

US. at 165, 103 S.Ct. at 2291.

2. Exhaustion of Remedies Under the Collective

Bargaining Agreement

Plaintiff must first demonstrate that she has

exhausted all contractual remedies under the CBA. Piaintiff

in this case appealed her termination through the grievance

process provided for under the terms of the CBA.

Eventually, the matter was submitted to arbitration on

November 27, 2000 the arbitrator rendered an opinion

upholding Plaintiff's termination. “The employee must at

least attempt to exhaust exclusive grievance and arbitration

procedures established by the bargaining agreement.” Vaca

v. Spies, 386 U.S. 171, 184, 87 S.Ct., 903, 914 (1967). The CBA

in the instant action provides for a procedure for employees

to present grievances to the company, a procedure to follow

if the grievance remains unresolved and finally a provision

for arbitration. (See Defendant’s Notice of Removal Exhibit

C at 25-27). Additionally, the CBA sets forth the grievance

procedure and arbitration procedure as the exclusive and

final remedy for claims. (See Id. at 27). Defendants do not

assert in their motion to dismiss that Plaintiff has not

exhausted all of her administrative remedies under the CBA.

Under the standard of review for a motion to dismiss, the

court must view the factual allegations in a light most

favorable to the Plaintiff. Capital Parks, 30 F.3d at 629.

Plaintiff has followed the CBS procedure by filing a

grievance with the Defendant and appealing that decision to

arbitration. Thus, the Court concludes that Plaintiff has

exhausted all of her administrative remedies under the CBA.

App. -24-

3. Union Breach of Fair Representation

A fair representation claim against the union is an

“indispensable predicate” for an employee to bring a §301

claim against the employer. Daigle v. Gulf States Utilities

Co., Local Union No. 2286, 794 F.2d 974, 979 (5" Cir. 1986)

(quoting United States Parcel Service, Inc. v. Mitchell, 451

US. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981)). Defendant

asserts that Plaintiff cannot allege nor prove a breach of her

union’s duty of fair representation.

Plaintiff has made no allegation in her complaint of

any subsequent pleading that the Union failed to meet its

duty of fair representation. Plaintiff's Response mentions

§301 only once and does not attempt to make any claim of a

breach of duty by her union. Plaintiff's response does not

respond to any allegations made in Defendant's Motion to

Dismiss. Plaintiff's Response merely suggest that Plaintiff

should be allowed to refile claims that were previously

dismissed in this action. (Plaintiff's Response to Defendant's

Motion to Dismiss at 1).

Plaintiff has filed a Motion for Leave to File Second

Amended Complaint which again makes no mention of her

claim under §301. Plaintiff merely wishes to replead a claim

for tortuous interference with contract and to add a claim for

declaratory judgment and to vacate the arbitration award.

(See Plaintiff's Motion for Leave to File Second Amended

Complaint at 6-7). The deadline for amending pleadings in

this case passed on May 21, 2001. Plaintiff cannot now

allege a claim against the Union nor can she replead her

claim against the Defendant to assert the Union's breach of

duty of fair representation.

Additionally, Plaintiff has brought suit against her

union regarding the paying of her attorney's fees for the

App. -25-

arbitration. (See Defendant’s Motion to Dismiss Exhibit A).

In the Motion to Remand for that case, Plaintiff states “there

are no allegations that Defendant (Union) did not fairly

represent Plaintiff while administering the collective

bargaining agreement. (See id. at 2).

Though §301 does not require it, Plaintiff could have

brought suit against the union for breach of its duty of fair

representation. However, Plaintiff is now time-barred from

brining a suit against the union. Where the grievance and

arbitration procedure is the exclusive and final remedy for

claims, suits brought under §301 are subject to a six-month

statue of limitation. DelCostello, 462 U.S. at 172, 103 U.S.

S.Ct. at 2294 (quoted in Daigle, 794 F.2d at 978). In Thomas,

while holding that petitioner’s claims were time-barred, the

Fifth Circuit Court of Appeals began the running period for

the statue of limitations at the termination of the grievance

period. 39 F.3d at 622. Here, the arbitration process was

completed on November 27, 2000. Following the

DelCostello rule, the statute of limitations ended on May 27,

2001. Thus, Plaintiff's claim against the union is bared by

the six-month statute of limitation.

In accordance with the above discussion, this Court

finds that Plaintiff is unable to state a claim under §301 and

thus her claims for intentional infliction of emotional

distress, breach of contract, abuse of process and

discrimination should be dismissed.

C. SECTION 8 OF THE NATIONAL LABOR

RELATIONS ACT (THE “NLRA”)

In the alternative, Defendant asserts that this Court

lacks subject matter jurisdiction over Plaintiff's state law

claims of abuse of process, intentional infliction of emotional

distress and breach of contract because they are preempted

App. -26-

‘by §8 of the NLRA. Federal courts do not generally have

jurisdiction over activity which is arguably subject to §7 or

§8 of the NLRA and must defer to the National Labor

Relations Board on these issues. U.A. 198 Health & Welfare,

Education and Pension Funds ‘v._Rester Refrigeration

Service, Inc., 790 F.2d 423, 425 (5" Cir. 1986), cert. denied,

485 US. 904, 108 S.Ct. 1074, 99 Led.2d 233 (1988). The

rationale behind this rule is to avert interference with

national labor policies. McDonald v. Oliver, 525 F.2d 1217,

1230 (5" Cir. 1976).

Section 8 of the NLRA prohibits employers from engaging

in unfair labor practices. “It shall be an unfair labor

practice3 for an employer...by discrimination in regard to

hire or tenure of employment or any term condition of

employment to encourage or discourage membership in any

labor organization.” National Labor Relations Aet, 29

US.C.A. §158(a)(3). An employer violates §8(a)(3) by

discharging employees because of their union activity. See

NLRB v. Thermon Heat Tracing Services Inc., 143 F.3d 181,

186 (5" Cir. 1998). Plaintiff's claims for breach of contract,

intentional infliction of emotional distress and abuse of

process arise from Plaintiff's allegedly wrongful termination

and Plaintiff asserts that she was terminated due to her

“active union activity.” . (See Plaintiff's First Amended

Petition at 3, 4, and 5). Plaintiff's claims are arguably subject

to the NLRA.

When the factual basis of a state-law claim is arguably

subject to the NLRA, such a claim can only be advanced if

Plaintiff can demonstrate that 1) the conduct is only of

peripheral concern to the Act, or 2) regulation of the conduct

is so- deeply rooted in local law that preemption is

inappropriate. Belknap v. Hale, 463 US. 491, 509 (1983).

Where there is an “identical controversy” between what

would be at issue in an unfair labor practice charge and in

App. -27-

the corresponding state-law- claim, such a state law claim

cannot be side to be of peripheral concern and thus cannot

proceed in state or federal court. Id.

Plaintiff bases her claims for breach of contract, abuse of

process and intentional infliction of emotional distress on

the allegation that Defendant breached the CBA by

wrongfully terminating her employment due to her union

activity and that Defendant abused the grievance and

arbitration proceedings to support the termination. The

resolution of all three of these claims requires an

examination of Defendant CITGO’s motives for both the

termination and its alleged misuse of the grievance and

arbitration proceedings, the identical evaluation required to

determine whether Defendant committed an unfair labor

practice in violation of the NLRA.

Plaintiff's claim for intentional infliction of emotional

distress alleges that Defendant’s conduct was extreme and

outrageous “because these Defendant’s knew that false and

perjured statements would not only substantiate Plaintiff's

termination but also prevent any reasonable expectation of

reinstatement through the grievance process.” (Plaintiff's

First Amended Petition at 5). To provide this allegation,

Plaintiff will have to demonstrate that Defendants’ conduct

cause her termination and prevented her reinstatement. (See

March 23, 2001 Order at 11).

Plaintiff's breach of contract claim is arguably subject to

the NLRA. Plaintiff alleges that CITGO entered into the

CBA and breached that agreement by failing to provide her

a fair and impartial arbitration proceeding. Clearly the

terms of the CBA, the facts and reasons for Plaintiff's

termination and the motives for the alleged misuse of the

arbitration proceedings would be at issue.

App. -28-

In regard to her claim for abuse of process, Plaintiff

claims that Defendants “wrongfully used the grievance

process to substantiate and uphold her discharge.”

Plaintiff's First Amended Petition at 6. Inquiry into this

state-law claim requires an evaluation of Plaintiff's

termination and Citgo’s motivation for firing Plaintiff as well

as its process for executing the termination.

The NLRB would undertake precisely the same

analysis identified by these three claims to determine

whether CITGO committed an unfair labor practice in

terminating Plaintiff. Such an analysis is within the sole

jurisdiction of this Court. Therefore, this Court finds that

Plaintiffs claims for intentional infliction of emotional

distress, breach of contract and abuse of process are

preempted by §8 of the NLRA and should be dismissed.

The Court notes that where a dispute arises over an

employer's action that is arguably an unfair labor practice

but is also covered under a CBA, a district court retains

‘urisdiction with the NLRB to resulve the matter. See

D.E.W., Inc. v. Local 93, 957 F.2d 196, 202 (5" Cir. 1992)

(adopting Smith v. Evening News, 371 U.S. 195, 197, 83 S.Ct.

267, 269, 9 L.Ed.2d 246 (1962)). Here, Plaintiff's claims are

completely preempted by §301, (See Order Denying Motion

to Remand and Dismissing Certain Claims dated March 21,

2000) however the Court has found that Plaintiff is unable to

assert a §301 claim, this court would retain jurisdiction with

the NLRB pursuant to the rule in Smith.

Iv. CONCLUSION

For the foregoing reasons, it is hereby ORDERED

that Plaintiff's claims for intentional infliction of emotional

distress, breach of contract, abuse of process and

discrimination be DISMISSED with prejudice.

App. -29-

SIGNED and ENTERED this__ day of November,

2001.

/S/

Janis Graham Jack

United States District Judge

App. -30-