Petition for Writ of Certiorari — Levi Strauss & Co. v. Trevino
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00-518 SEP 25 200
No QEEICE 06 Zi Gib
IN THE
Supreme Court of the United States
LEVI STRAUSS & CO.,
Petitioner,
Vv.
AGUSTINA TREVINO, HERMINIA HERRERA,
BEATRIZ OLIVAREZ AND GLORIA GUAJARDO,
Respondents.
On Petition for Wnt of Certiorari from the
United States Court of Appeals for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
Mario A. Barrera
Counsel of Record
BRACEWELL & PATTERSON, L.L.P.
800 One Alamo Center
106 South St. Mary's Street
San Antonio, Texas 78205
Telephone: (210) 299-1166
Facsimile: (210) 299-1133
Attorney for Petitioner
i
QUESTIONS PRESENTED FOR REVIEW
Whether a workers' compensation discrimination claim
under Tex. Labor Code § 451.001 "arises under" the state
workers' compensation laws given the fact that Congress’
purpose in enacting § 1445(c) was merely to prevent
workers' compensation benefit claims from being removed
to federal court.
Whether the Fifth Circuit erred in establishing a per se rule
that a workers' compensation discrimination claim under
Tex. Labor Code § 451.001 can never be preempted by
§ 301 of the Labor Management Relations Act, 29 U.S.C.
§ 185(a).
ll
ALL PARTIES TO THE PROCEEDING
The caption of the case contains the names of ail parties to the
proceeding, with the exception of Mike Ramos, who was a
defendant in the lower court proceedings. Levi Strauss & Co.
is a Delaware corporation. It has no parent corporation and no
publicly-held company owns 10 percent or more of Levi
Strauss & Co.'s stock.
ill
TABLE OF CONTENTS
Questions Presented For Review .................... i
All Parties to The Proceeding ...................... il
EE er ee rere re ee ili
OO OS ee eee re ee ee vi
Citation of Official Report of Opinion................ ]
| Statement of Basis for Jurisdiction .................. |
Statutes Involved in the Case... .................... 2
OP Re eee eee ee eee ee 2
Argument EE ee ree 7
I. The Fifth Circuit Erroneously Concluded
That a Workers' Compensation Discrimination
Claim "Arises Under" the State's Workers’
Compensation Laws and Is Therefore
Barred from Removal by § 1445(c) ........... 8
A. Trevino Decides an Important
Question of Federal Law That
Should Be Settled by This Court. ......... 8
B. Trevino Conflicts with the Decisions
of Other Circuit Courts of Appeal ......... 9
iV
II. The Fifth Circuit Has Established an
Impermissible Per Se Rule That Workers
Compensation Discrimination Claims
Can Never Be Preempted by §301 .......... 13
A. Trevino Conflicts with Supreme
SL I sh shea bracken seks 13
B. Trevino Conflicts with Decisions of
Other Federal Circuit Courts ............ 16
C. Trevino Decides an Important Question
of Federal Law That Should Be Settled
ee eee re ee eee oe 22
ID: ak 5s nee sc oxcgncxd Cte e hha ea akan 23
Appendix
Decasson of the Pills Carew... . 65 os cede App. 1
Order of the Fifth Circuit Denying Rehearing .. App. 2
Relevant Statutory Provisions............... App. 3
ame UN. @ WORE bce ew ee eee App. 3.1
Labor Management Relations Act § 301
FR Se er re App. 3.2
Texas Labor Code § 451.001 .......... App. 3.3
Vv
Relevant Unpublished Opinions
Beckwith vy. Diesel Tech. Co.,
No. 99-1548, 2000 WL 761808
(6th Cir., May 30,2000) ............-...
Roberts v. Autoalliance Int'l, Inc.,
No. 92-1447, 1993 WL 210717
(6th Cir., June 15, 1993) ............--.
Sanders v. Hughes Aircraft Co.,
No. 93-56378, 1994 WL 227971
(9th Cir., May 27, 1994) ............---
Smith v. WGBH Educ. Found., Inc.,
No. 93-1213, 1993 WL 375816
(ist Cir., Sept. 27, 1993) .........---0+-
Thornton v. Denny's, Inc.,
No. 92-1368, 1993 WL 137078
(6th Cir., Apr. 29, 1993) .............--
vi
TABLE OF AUTHORITIES
Cases
Allis-Chalmers Corp. v. Lueck
STE Wis Be CUO oa casas cccvesns 13, 14, 22, 23
Almazan v. United Servs. Auto. Ass'n, Inc.
840 S.W.2d 776 (Tex. App.- San Antonio 1992,
WR eS Creek eh foxes hs Geet ee ot 12
Anastasoff v. U.S.A.
2000 U.S. App.
Lexis 21179 (6th Cir. 2000) ................ 18, 21
Beckwith v. Diesel Tech. Co.
No. 99-1548
2000 WL 761808 (6th Cir., May 30,2000) .... 19,20
Bottijliso v. Hutchison Fruit Co.
GPS 7. Fee ONE: A TUBE oo AN Ses Q
Davis v. Johnson Controls, Inc.
ee ae eas 5 cas 6 ds ce alee een 21
Humphrey v. Sequentia, Inc.
Ee eri fl ee) -) ert er 20
Jones v. Roadway Express, Inc.
931 F.26 3006 (Fa Ue. USPT) wc sw ee cece as 12
Lingle v. Norge Div. of Magic Chef, Inc.
OOS CLD. BOP CIGRED wg occ iinet. 13, 15, 16, 22
Vii
Lingle v. Norge Div. of Magic Chef, Inc.
823 F.2d 1031 (7th Cir. 1987)
rev'd on other grounds, 486 U.S. 399 (1988) ...
Magerer v. John Sexton & Co.
912 F.2d 525 (ist Cir. 1990) ...........
Martin v. Shaw's Supermarkets, Inc.
105 F.3d 40 (1st Cir.)
cert. denied, 522 U.S. 818 (1997) ........
Monroe v. Missouri Pacific R.R.
115 F.3d 514 (7th Cir. 1997) ...........
Perugini v. Safeway Stores
935 F.2d 1083 (9th Cir. 1991) ..........
Roberts v. Autoalliance Int'l, Inc.
No. 92-1447
1993 WL 210717 (6th Cir., June 15, 1993)
Sanders v. Hughes Aircraft Co.
No. 93-56378
1994 WL 227971 (9th Cir., May 27, 1994)
Smith v. Evening News Ass'n
yA BSk ori ea
Smith v. WGBH Educ. Found., Inc.
No. 93-1213
1993 WL 375816 (ist Cir., Sept. 27, 1993) ..
me
Vill
Spearman v. Exxon Coal USA, Inc.
16 F.3d 722 (7th Cir. 1994)
cert. denied, 513 U.S. 955 (1994) ............ 10-12
Teamsters v. Lucas Flour Co.
SE og a ec Wwe cae vibe cakeNeee 13
Textile Workers v. Lincoln Mills
Pe EE go eK RA ds bee eo be base. 13
Thornton v. Denny's, Inc.
No. 92-1368
1993 WL 137078 (6th Cir., Apr. 29, 1993) ....... 10
Trevino v. Ramos & Levi Strauss & Co.
le weces 1s & | Renae passim
Twilley v. Daubert Coated Prods.
ee BR ee er 9
Wiley v. Missouri Pac. R.R.
430 So. 2d 1016 (La. Ct. App. 1982, writ denied) ... 9
Statutes
pi ae Br ee ere re ere re “a
yp gk oe S| Eee Pe ree ee ee ers 2
ee ee ep cas cs ee eee passim
Labor Management Relations Act § 301
a Eo vk oa Ces Gee ee passim
TEX. REV. Civ. STAT. ANN.
I 3 awa aw kaeernte nae ka eS 9
Texas Labor Code
a ren ec r rrr. passim
Texas Workers' Compensation Act
Fk err Ore re Tre ers Sree. Ty 9
Miscellaneous
eo boas eae aia wene es 8,9
First Circuit Court of Appeals
| a ne ene eee ee resr ry 18
Larson, Workmen's Compensation
§ 2.10 (@esk od. 1906) ... 1... eee eee nee 11
Ninth Circuit Court of Appeals
8. a ee er ee ar eee eer ae ge 20
Sixth Circuit Court of Appeals
ee ee ee ee ee 10, 19
U.S. Constitution
NS ERIS eS Oe OO oe A ee 18, 20
|
IN THE
Supreme Court of the United States
LEVI STRAUSS & CO.,
Petitioner,
V.
AGUSTINA TREVINO, HERMINIA HERRERA,
BEATRIZ OLIVAREZ AND GLORIA GUAJARDO,
Respondents.
On Petition for Writ of Certiorari from the
United States Court of Appeals for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
Citation of Official Report of Opinion
Sought to be reviewed is a decision of the United States
Court of Appeals for the Fifth Circuit, Agustina Trevino,
Herminia Herrera, Beatriz Olivarez and Gloria Guajardo v.
Mike Ramos & Levi Strauss & Co., 197 F.3d 777 (Sth Cir.
1999).
Statement of Basis for Jurisdiction
The Fifth Circuit rendered its decision on December 7,
1999. (App. 1) Thereafter, Levi Strauss & Co. timely filed a
2
petition for rehearing en banc which was denied by the Fifth
Circuit in an order dated June 26, 2000. (App. 2) This Court
has jurisdiction pursuant to 28 U.S.C. § 1254(1) to review on
a writ of certiorari the judgment or decree of the Fifth Circuit.
Statutes Involved in the Case
Relevant provisions of the following three statutes are set
forth in the Appendix: (1) Labor Management Relations Act,
29 U.S.C. § 185(a); (2) 28 U.S.C. § 1445(c); and (3) Texas
Labor Code § 451.001. (App. 3)
Statement of the Case
a. Lower Court Proceedings
Plaintiffs Agustina Trevino, Herminia Herrera, Beatriz
Olivarez, and Gloria Guajardo filed this action in state court
against Levi Strauss & Co. ("LS&CO.") and LS&CO.'s Human
Resources Manager, Mike Ramos, alleging workers'
compensation discrimination, intentional infliction of
emotional distress, and negligent hiring, supervision and
retention. LS&CO. removed the case to federal court pursuant
to 28 U.S.C. § 1331 on the ground that Plaintiffs' claims were
preempted by § 301 of the Labor Management Relations Act
("LMRA"), 29 U.S.C. § 185(a), and thus presented a federal
question. The district court found the intentional infliction
claims preempted and denied Plaintiffs' motions to remand.
The court subsequently concluded that the workers’
compensation discrimination claims were not preempted, but
retained supplemental jurisdiction over those claims and
entered summary judgment for LS&CO. on the merits. The
Plaintiffs timely appealed. The Fifth Circuit reversed the
3
district court's decision. LS&CO. subsequently filed a petition
for rehearing en banc, which was denied on June 26, 2000.
b. Relevant Sections of CBA
All four Plaintiffs in this case worked as sewing machine
operators at LS&CO.'s McAllen, Texas sewing plant. Their
employment was governed by a collective bargaining
agreement ("CBA") between LS&CO. and the Union of
Needletrades, Industrial and Textile Employees, AFL-CIO,
CLC, which contained detailed provisions regarding leaves of
absence ("LOA"). As explained more fully below, all four
Plaintiffs were terminated pursuant to the LOA provisions in
the CBA: three were terminated because they failed to extend
their LOAs in accordance with the CBA, and one was
terminated because her LOA exceeded the 12-month CBA
limit. The relevant provisions in the CBA, specifically
Article V §§ 8 & 9 and Article XI §§ 1 & 2, provide, in
pertinent part:
ARTICLE V - SENIORITY
Section 8: Accommoda tions
In the event that along service employee develops
serious and enduring physical limitations resulting
from health or age considerations or should an
employee experience a serious accident which
results in physical limitations, which prevent an
employee from performing the assigned job or
operation, the parties hereto shall meet and
discuss what, if any, special job assignment
consideration such employee may need. The
4
parties may mutually agree to assign such
employee to a future job vacancy without bidding
the vacancy. The parties recognize that any
transfer outlined above may limit the exercise of
bidding rights by more senior employees, and,
therefore, it is agreed that any transfers
contemplated above will be considered only for
exceptional and bonafide cases.
Section 9: Termination of Seniority
An employee's seniority shall terminate when
he/she:
b) fails to return to work after a lay-off or
expiration of a leave of absence,
c) is absent for three (3) consecutive days
without notifying the Company ....
ARTICLE XI - LEAVES OF ABSENCE
Section 1: Time Limits
A leave of absence may be granted to an
employee upon written request not to exceed
thirty (30) days for illness or accident suffered by
the employee or a serious illness or accident to a
member of his immediate family. The Company -
may extend leaves of absences for additional
thirty (30) day periods up to a maximum leave
period of twelve (12) months. .. .
5
Section 2: Documentation
All requests for leave must be in writing. In cases
of sick leave, the Company may require proof of
evidence of illness, including a doctor's certificate.
In addition, the Company may require the
employee to be examined by a doctor designated
by the Company... .'
c. Factual Background of Plaintiffs
Agustina Trevino: Trevino was injured on the job, went
on LOA, and was terminated pursuant to the CBA when she
failed to return to work after 12 months. She claims that art. XI
§ 1 of the CBA (12-month limit on LOAs) is unfair to injured
employees and thus discriminates against them. She also
claims that LS&CO. discriminated against her by not giving
her light duty? or accommodating her under art. V § 8 of the
CBA.
Herminia Herrera: Herrera was injured on the job, went
on LOA, and was terminated after she failed to provide a
properly dated doctor's letter that specified the expected dates
for her return. She claims that LS&CO. discriminated against
' Plaintiff Guajardo was terminated in 1994, and her termination was
governed by the CBA that ended January 27, 1995. The CBA provisions
quoted in text above are the same in both CBAs, except that the agreement
that expired on January 27, 1995, did not contain descriptive section
headings.
? The light duty policy is an implied part of the CBA. See Perugini v.
Safeway Stores, 935 F.2d 1083, 1088 (9th Cir. 1991) (claim based on
refusal to provide "light duty" is preempted even though "[n]o provision of
the CBA specifically addresses light duty").
6
her in the way it enforced and interpreted art. XI (LOA
provision) of the CBA, and that LS&CO. should have
accommodated her pursuant to art. V § 8 of the CBA.
Beatriz Olivarez: Olivarez was injured on the job, went on
LOA, and was terminated after she failed to renew her LOA.
She claims that LS&CO. violated art. XI of the CBA when it
failed to provide her with a full 30-day extension on her LOA.
Gloria Guajardo: Guajardo was injured on the job, went
on LOA, and failed to extend her LOA before it expired. When
she failed to report to work within three working days of the
expiration of her leave, she was terminated pursuant to the
CBA. She claims that her termination violated art. XI § 1 of
the CBA (requiring employees to renew their LOAs every 30
days) because the doctor's letter she submitted to renew her
LOA should have put LS&CO. on notice that she would be
unable to return to work at the end of the 30-day period. She
also claims that LS&CO. violated its light duty policy and
art. V § 8 of the CBA, which governs accommodations.
d. Brief Overview of Fifth Circuit Decision
The Fifth Circuit failed to discuss any of the facts set forth
above surrounding Plaintiffs' discharges or the CBA provisions
that underlie their workers' compensation discrimination
claims. Rather, the court simply set out a bright line rule that
workers' compensation discrimination claims, by their very
nature, can never be preempted by § 301 of the LMRA.
In order to recover under § 451.001, an
employee must show that the employer's
discriminatory action "would not have occurred
. when it did had the worker's compensation claim
Sd cia alr Se te Sel W AILS Pe ee ent ae Vd as bole
oes eictie ou ig
7
not been filed." This purely factual question
centers on the employee's conduct and the
employer's motivation. "Neither of [these]
elements requires a court to interpret any term of
a collective-bargaining agreement."
To defend against a claim of retaliatory
discharge, an employer must show that it had a
non-retaliatory reason for the discharge. This
question also does not "turn on the meaning of
any provision of a collective-bargaining
agreement."
Trevino, 197 F.3d at 780 (citations omitted).
The Fifth Circuit further held that workers' compensation
discrimination claims cannot be removed to federal court
because such claims "arise under" the Texas workers’
compensation laws and are, therefore, barred from removal by
§ 1445(c). Id. at 781. Accordingly, the Fifth Circuit reversed
the district court and ordered the claims remanded to state
court.
8
Argument and Authority
I. The Fifth Circuit Erroneously Concluded That a
Workers’ Compensation Discrimination Claim "Arises
Under" the State's Workers' Compensation Laws and Is
Therefore Barred from Removal by § 1445(c).
A. Trevino Decides an Important Question of Federal
Law That Should Be Settled by This Court.
Section 1445(c) prohibits the removal of state court actions
"arising under" the state's workers' compensation laws. By
concluding that a workers’ compensation discrimination claim
“arises under" a state's workers' compensation laws within the
meaning of § 1445(c), Trevino effectively deprives a federal
district court of removal jurisdiction over such claims. Because
the Fifth Circuit was wrong in its conclusion, this issue should
be settled by this Court.
First, the legislative history of § 1445(c) clearly establishes
that, in enacting the statute, Congress was concerned with
workers’ compensation benefit claims, not discrimination
claims:
Nearly all of the State statutes on workmen's
compensation provide summary proceedings for
the expeditious and inexpensive settlement of
claims by injured workmen against the employer.
S. Rep. No. 1830 (1958), reprinted in 1958 U.S.C.C.A.N.
3099, 3106. While workers' compensation statutes provide
summary proceedings for "benefit claims," there is no summary
proceeding for a workers’ compensation discrimination claim,
which must be filed in court and involves the same expenditure
9
of time and expense as any other lawsuit. The legislative
history further demonstrates that in enacting § 1445(c),
Congress was concemed with the large number of removed
workers' compensation cases in four states: Texas, Alabama,
New Mexico, and Louisiana. /d. at 3136. However, when
§ 1445(c) was passed in 1958, none of these states provided a
cause of action for workers' compensation discrimination.*
Finally, § 451 is not part of the Texas Workers’
Compensation Act ("TWCA"). The TWCA is codified as
Subtitle A of Title 5 of the Texas Labor Code, which provides
“this subtitle may be cited as the Texas Workers' Compensation
Act." Jd. § 401.001. Section 451 meanwhile is found in
Subtitle B, which is entitled "Discrimination Issues."
B. Trevino Conflicts with the Decisions of Other
Circuit Courts of Appeal.
The Fifth Circuit's holding in Trevino also conflicts with
decisions of the Sixth and Seventh Circuits, which have
expressly held that workers' compensation retaliation claims do
not "arise under" the workers’ compensation laws and therefore
are not subject to the removal prohibition in § 1445(c).
> See art. 8307c TEx. REV. Civ. STAT. ANN. (predecessor to § 451)
(workers' compensation discrimination statute established in 1971); Wiley
v. Missouri Pac. RR, 430 So. 2d 1016, 1021 (La Ct App. 1982, writ
denied) (workers' compensation discrimination statute established in 1980);
Twilley v. Daubert Coated Prods., 536 So. 2d 1364, 1367 (Ala. 1988)
(workers' compensation discrimination statute established after 1984);
Bottijliso v. Hutchison Fruit Co., 635 P.2d 992, 997-98 (N.M. App. 1981)
(workers' compensation discrimination claim did not exist as of 1981).
10
In Thornton v. Denny's, Inc., No. 92-1368, 1993 WL
137078 (6th Cir., Apr. 29, 1993)* (App. 8)5, the plaintiff filed
suit in state court alleging, among other things, that he had been
terminated for pursuing his rights under the Michigan workers'
compensation statute. After the case was removed to federal
court, the plaintiff claimed that the federal court lacked subject
matter jurisdiction to hear the case because it arose out of the
Michigan workers' compensation law. Although the Michigan
law contained language prohibiting discrimination against an
employee because the employee had filed a workers'
compensation claim, the Sixth Circuit held that the claim did
not "arise under" the Michigan workers' compensation statute
because the "workers' compensation statute provides neither the
mechanisms nor the remedy for this type of suit." Jd. at *2
(App. 8.4). Like its Michigan counterpart, the TWCA does not
create either the mechanisms or the remedy for a workers'
compensation discrimination claim in Texas; rather, such a
claim is created by a statute outside of the workers'
compensation statute. See Tex. Lab. Code § 451.
Similarly, in Spearman v. Exxon Coal USA, Inc., 16 F.3d
722 (7th Cir. 1994), cert. denied, 513 U.S. 955 (1994), the
plaintiff, who was discharged due to excessive absenteeism,
filed suit in state court claiming that his discharge was in
retaliation for pursuing his rights under the Illinois workers'
compensation laws. After the case was removed to federal
court, the plaintiff argued that removal was improper because
his claim arose under the Illinois workers' compensation law
‘ Pursuant to Local Rule 28(g) of the Sixth Circuit Court of Appeals,
unpublished decisions may be cited if they have precedential value in
relation to a material issue in a case.
> Unpublished decisions cited in this petition are included in the
attached appendix.
Ve ee NEE Ld) ee
11
and thus removal was prohibited by § 1445(c). The Seventh
Circuit disagreed based on two grounds. First, § 1445(c) was
designed to prevent removals that wouldnullify the expeditious
and inexpensive procedyres states had devised for workers’
compensation claims. Jd. at 724. The court reasoned that
"(rJetaliatory-discharge litigation is anything but simple and
expeditious; tort litigation in federal court is no more
cumbersome than tort litigation in state court." Jd. Second, in
the court's view, "workers' compensation regimes entail limited
compensation without fault, the antithesis of the motive-based
[discharge] retaliatory tort in which unlimited compensatory
and punitive damages are available." Jd.
Our view that the tort of retaliatory discharge is
not a worker's compensation law is supported by
the fact that, as a matter of federal law, worker's
compensation laws provide limited no-fault
compensation for an injury; this limit on damages
is in exchange for the elimination of general tort
rules and defenses. See Larson, Workmen's
Compensation § 1.10 (desk ed. 1986). The
Illinois tort of retaliatory discharge lacks, for
purposes of § 1445(c), the essential elements of a
worker's compensation law.
Spearman, 16 F.3d at 724 (quoting Lingle v. Norge Div. of
Magic Chef, Inc., 823 F.2d 1031, 1039 n.9 (7th Cir. 1987),
rev'd on other grounds, 486 U.S. 399 (1988)).
The court went on to explain that while the workers’
compensation law serves as the background of the workers’
compensation retaliation tort, furnishing the "public policy"
that the employer must respect, it is a completely different type
of claim:
12
That workers’ compensation law is a premise of
the tort does not mean that the tort "arises under"
the workers’ compensation laws, any more than a
state tort based on the violation of a federal safety
standard “arises under" that standard for purposes
of the federal question jurisdiction .... A claim
of retaliatory discharge may be adjudicated
without any inquiry into the meaning of the
workers' compensation laws; the question for
decision usually is the employer's motive for
adverse action rather than the entitlement to
compensation for injury on the job.
Spearman, 16 F.3d at 725. Accordingly, the court found that
the workers’ compensation retaliation claim did not “arise
under" the Illinois workers' compensation law and was
therefore properly removed to federal court.° Significantly, in
arriving at its decision, the Seventh Circuit specifically noted
that its decision that the workers' compensation discrimination
claim did not "arise under" the workers' compensation laws
conflicts with the Fifth Circuit decision in Jones v. Roadway
Express, Inc., 931 F.2d 1086, 1091-92 (Sth Cir. 1991), the very
decision on which the Fifth Circuit relied in Trevino.
Spearman, 16 F.3d at 723.
° Although the workers’ compensation discrimination claim claim in
Spearman is a common law tort and the claim in Trevino is statutory, this
is a difference without substance because the two causes of action have the
same purpose of protecting employees who have been injured on the job
and provide essentially the same remedies. Moreover, a workers’
compensation discrimination claim under § 451 is treated as a tort under
Texas law. See Almazan v. United Servs. Auto. Ass'n, Inc., 840 S.W.2d 776,
780 (Tex. App.- San Antonio 1992, writ denied).
ee
Rie eed a ea
13
Il. The Fifth Circuit Has Established an Impermissible Per
Se Rule That Workers' Compensation Discrimination
Claims Can Never Be Preempted by § 301.
A. Trevino Conflicts with Supreme Court Decisions.
Trevino, in effect, holds that a workers' compensation
retaliation claim can never be preempted. This rule is in direct
conflict with Lingle v. Norge Div. of Magic Chef, Inc.,
486 U.S. 399 (1988), one of a line of Supreme Court cases
which has addressed the preemptive effect of § 301.
By way of background, almost fifty years ago, in Textile
Workers v. Lincoln Mills, 353 U.S. 448 (1957), the Court ruled
that § 301 expresses a federal policy that the substantive law to
apply in § 301 cases "is federal law, which the courts must
fashion from the policy of our national labor laws." Jd. at 456.
Five years later, the Court revisited § 301 in Teamsters v.
Lucas Flour Co., 369 U.S. 95, 103 (1962), and concluded that
"in enacting § 301 Congress intended doctrines of federal labor
law uniformly to prevail over inconsistent local rules." Jd. at
104. The Court explained that the interpretation of CBAs must
be determined by federal law because the possibility of
conflicting substantive interpretations under state and federal
law would inevitably exert a disruptive influence upon both the
negotiation and administration of collective bargaining
agreements. Jd. at 103-104. Accordingly, the Court held that
a state court suit alleging a CBA violation must be brought
under § 301 and must be resolved by reference to federal law.
In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11
(1985), the Court extended the preemptive effect of § 301
14
beyond suits alleging contract violations to suits involving the
interpretation of a CBA.
The interests in interpretive uniformity and
predictability that require that labor-contract
disputes be resolved by reference to federal law
also require that the meaning given a contract
phrase or term be subject to uniform federal
interpretation. Thus, questions relating to what
the parties to a labor agreement agreed, and what
legal consequences were intended to flow from
breaches of that agreement, must be resolved by
reference to uniform federal law, whether such
questions arise in the context of a suit for breach
of contract or in a suit alleging liability in tort.
Any other result would elevate form over
substance and allow parties to evade the
requirements of § 301 by relabeling their contract
claims as claims for tortuous breach of contract.
Id. at 211.
According to the Court, if state law were allowed to
determine the meaning intended by the parties in adopting a
particular phrase or term in a CBA, the parties would be
uncertain as to what they were binding themselves to when
they reached agreement ina CBA. /d. As aresult, it would be
more difficult to reach agreement, and disputes over the nature
of the agreement would proliferate. Jd. "Exclusion of such
claims ‘from the ambit of § 301 would stultify the
congressional policy of having the administration of collective
bargaining contracts accomplished under a uniform body of
federal substantive law." Jd.
15
Finally, and most recently, the Court in Lingle, considered
the preemptive effect of § 301 in the context of a workers’
compensation discrimination claim. In that case, the plaintiff
brought a state court action claiming that she had been
discharged for exercising rights under the state workers’
compensation act. The employer argued that the claim was
preempted by § 301 because the applicable CBA protected
employees "from discharge except for ‘proper’ or ‘just’ cause."
Lingle, 486 U.S. at 401. This Court held that the claim was not
preempted merely because the CBA provided “a broad
contractual protection against discriminatory - or retaliatory -
discharge" since the state court could resolve the claim
“without interpreting the ‘just cause’ language of a collective
bargaining agreement." Jd. at 412-13. In arriving at its
decision, however, this Court reaffirmed the broad and
preclusive effect of § 301 preemption when a state law claim
requires interpretation of a term in a CBA:
[I]f the resolution of a state-law claim depends
upon the meaning of a collective-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.
_. . Today's decision should make clear that
interpretation of collective-bargaining agreements
remains firmly in the arbitral realm; judges can
determine questions of state law involving
labor-management relations only ifsuch questions
16
do not require construing collective-bargaining
agreements.
Id. at 405-06, 411 (footnotes omitted).
Although it did not find that the specific workers'
compensation discrimination claim before it was preempted,
Lingle expressly acknowledged that a workers' compensation
discrimination claim, like any other state tort claim, is
preempted if "resolution of a state-law claim depends upon the
meaning of a collective-bargaining agreement... ." Jd. at
405-06.
In spite of the foregoing authorities on point, the Fifth
Circuit has established a per se rule that workers' compensation
discrimination claims can never be preempted. In so doing, the
Fifth Circuit has ignored Lingle's holding that a workers'
compensation discrimination claim, like any other state tort
claim, may be preempted by § 301.’
B. Trevino Conflicts with Decisions of Other Federal
Circuit Courts.
Trevino also conflicts with decisions from the First, Sixth,
Eighth and Ninth Circuits which have held that claims of
workers' compensation discrimination are preempted by § 301
when they allege a breach or require interpretation of a CBA.
7 Our case, unlike Lingle, does not involve a "just cause" provision
under the CBA; rather, it involves specific provisions dealing with LOAs
and accommodation.
hae Lt ehh ee baal Pee EP ee pote fe:
17
1. First Circuit.
The First Circuit has found workers' compensation
discrimination claims brought pursuant to Sections 75A and
75B of Massachusetts law preempted by § 301 on three
separate occasions. Section 75A grants a hiring preference to
any former employee who lost his job due to a compensable
injury. Section 75B prohibits an employer from discharging or
otherwise discriminating against an employee because he
exercised his rights under the workers' compensation law.
These provisions also incorporate federal preemption law by
providing that "[iJn the event that any right set forth in this
section is inconsistent with an applicable collective bargaining
agreement, such agreement shall prevail."
In Magerer v. John Sexton & Co., 912 F.2d 525 (ist Cir.
1990), the plaintiff claimed that he had been discharged in
violation of Section 75B. While the plaintiff argued that this
claim was wholly independent of the CBA, the First Circuit
found the claim preempted because the CBA contained several
provisions that could be construed to govern the conduct
underlying the plaintiff's retaliatory discharge claim. In
particular, the"management rights" clause gave the employer
the right to determine the "direction of the work forces,
including the disciplining, suspension or discharge of
employees for proper cause." Jd. at 530. Because the
management rights clause provided standards to govern the
underlying retaliatory discharge claim, the court would be
required to consult the CBA to decide the claim. Jd. Thus, the
court held that the claim was completely preempted. /d.
Three years later, the First Circuit again found a workers'
compensation discrimination claim preempted in Smith v.
WGBH Educ. Found., Inc., No. 93-1213, 1993 WL 375816
18
(1st Cir., Sept. 27, 1993).* (App. 7) According to the plaintiff,
WGBH violated Sections 75A and 75B when it refused his
request to return to work after being on a disability leave. The
First Circuit concluded that the CBA essentially contained the
same management rights clause as in Magerer and thus found
Smith's Section 75B claim preempted. 1993 WL 375816 at *1
(App. 7.3). In terms of Smith's claims under Section 75A, the
court found that the CBA gave WGBH "the sole and exclusive
right to make all decisions regarding the management,
operation, and programming of [its] operations, including
determination of the number of employees covered by this
Agreement." Jd. The CBA also contained a seniority-based
hiring preference which conflicted with Section 75A. Id.
Therefore, because plaintiff's claim required interpretation of
the CBA, the court held it was preempted. /d. at *1 (App. 7.4).
More recently, in 1997, the First Circuit again found a
workers' compensation discrimination claim preempted in
Martin v. Shaw's Supermarkets, Inc., 105 F.3d 40 (1st Cir.),
cert. denied, 522 U.S. 818 (1997). In Martin, like Smith, the
plaintiff, who had lost her job because of acompensable injury,
brought suit in state court claiming that her employer violated
Sections 75A and 75B by failing to rehire her. The court
determined that because the management nights clause was
arguably inconsistent with the statute, a court would have to
construe the CBA to decide the claims. /d. at44. Accordingly,
the court found the claims preempted. Jd.
* While Rule 36(f) of the First Circuit Court of Appeals provides that
unpublished opinions may not be cited in unrelated cases, the Eighth Circuit
has found such rules unconstitutional under Article III of the U.S.
Constitution because they purport to expand the judicial power beyond the
bounds of article III. Anastasoff v. U.S.A., 2000 U.S. App. Lexis 21179 at
*3 (8th Cir. 2000).
POE ee a a TR nee 7 ‘ os
aa ah oat i bah bial
19
2. Sixth Circuit.
In Roberts v. Autoalliance Int'l, Inc., No. 92-1447,
1993 WL 210717 (6th Cir., June 15, 1993)’ (App. 5), the
plaintiff's complaint alleged three causes of action: workers'
compensation discrimination, handicap discrimination in
violation of state law and handicap discrimination in violation
of federal law. With regard to the workers' compensation
discrimination claim, the complaint contained a paragraph
alleging that the employer's "policy of terminating all persons
who remain off work greater than 52 weeks is intended to
discriminate against persons who allege work-related injuries."
1993 WL 210717 at *2 (App. 5.4). The Sixth Circuit held that
this provision made the plaintiff's claim dependent on the CBA
because the district court would have to interpret the CBA to
reach the plaintiff's claim. Jd. at *5 (App. 5.12). Accordingly,
the claim was preempted. /d.
In a novel twist, another plaintiff in the Sixth Circuit
alleged that she had been terminated because her husband had
filed a workers' compensation claim. Beckwith v. Diesel Tech.
Co., No. 99-1548, 2000 WL 761808 (6th Cir., May 30, 2000)."°
(App. 4) The plaintiff argued that under Michigan law, a
discriminatory discharge of an employee in response to that
employee's filing a workers’ compensation claim was
actionable in tort. Jd. at *3 (App. 4.6). Therefore, the plaintiff
argued that her own claim - as a spouse of the employee filing
the workers' compensation claim - was a natural extension of
Michigan law. Jd. The Sixth Circuit held that a court hearing
the plaintiff's case would be required to interpret the CBA
® See foomote 4, supra.
10 See footnote 4, supra.
20
because in her complaint, the plaintiff claimed that the
employer's reason for terminating her - repeated absenteeism
- was a pretext for firing her in response to her husband's
workers' compensation claim. /d. at *3 (App. 4.7). Because it
concluded that the employer would show that it fired the
plaintiff because she failed to abide by the terms of the CBA,
the court found her claim preempted. Jd.
3. Eighth Circuit.
In Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1246 n.11
(8th Cir. 1995), the court declined to adopt a rule that a claim
which arises under a state's workers' compensation laws is
per senonremovable under § 1445(c). The court reasoned that
as a matter of Congressional intent, § 1445(c) would not apply
to a claim which is completely preempted by § 301 of the
LMRA and only facially arises under a state's workers'
compensation laws. Although the Eighth Circuit concluded
that the specific workers' compensation discrimination claim in
issue was not preempted by § 301, it recognized that workers'
compensation discrimination claims may be preempted under
appropriate circumstances. Jd.
4. Ninth Circuit.
The Ninth Circuit has also found a workers' compensation
discrimination claim partially preempted by § 301. In Sanders
v. Hughes Aircraft Co., No. 93-56378, 1994 WL 227971
(9th Cir., May 27, 1994) (App. 6),"' the plaintiff claimed that
'! While Local Rule 36-3 of the Nimth Circuit Court of Appeals
provides that unpublished opinions may not be cited in unrelated cases, the
Eighth Circuit has found such rules unconstitutional under Article III of the
(continued...)
21
he was terminated in retaliation for filing a workers’
compensation claim. In analyzing the preemption issue, the
court noted that the plaintiff's complaint indicated that his
retaliatory termination claim was in part based on alleged
violations of the CBA. /d. at *2 (App. 6.4). The court held that
to the extent the plaintiff's complaint indicated that his claim
was partly based on alleged violations of the CBA, his claim
was preempted by § 301. Jd. at *2 (App. 6.4-6.5). See also
Monroe v. Missouri Pacific R.R., 115 F.3d 514 (7th Cir. 1997)
(holding that RLA preempts claim in which piaintiff claimed
that he was wrongfully discharged in violation of public policy
because his employer attempted to prevent him from fully
exercising his rights to collect damages for his work-related
injuries).!*
As demonstrated above, the First, Sixth, Eighth and Ninth
Circuits have held that workers’ compensation retaliation
claims are preempted if adjudicating the claims would require
interpretation of a CBA or if the plaintiffs claim that a
provision contained in the CBA discriminates against
'! (.. continued)
U.S. Constitution because they purport to expand the judicial power beyond
the bounds of article III. Anastasoff, 2000 U.S. App. Lexis 21179 at *3.
'2 Trevino also conflicts with circuit court cases holding that state
handicap discrimination claims are preempted by § 301. In Davis v.
Johnson Controls, Inc., 21 F.3d 866 (8th Cir.), cert. denied, 513 U.S. 964
(1994), the court held that the plaintiff's handicap discrimination claim was
preempted because he would have to show that his employer could have
reasonably accommodated his return-to-work request and the relocation of
the plaintiff to a position commensurate with his physical limitations would
require an examination of the seniority rights of both the plaintiff and other
employees under the CBA. /d. at 868. That is the precise issue the court
would have to address in resolving the claim of at least three out of four of
the Plaintiffs in Trevino.
22
employees who have pursued workers’ compensation claims.
Accordingly, the Fifth Circuit's per se rule that workers'
compensation retaliation claims under § 451 can never be
preempted conflicts with these decisions and should be
reviewed by the Court.
C. Trevino Decides an Important Question of Federal
Law That Should Be Settled by This Court.
In Lingle, this Court determined that a state court action in
which the plaintiff claimed that she had been terminated for
exercising her rights under the workers’ compensation act was
not preempted by § 301 merely because the applicable CBA
contained a general "just cause" provision. In 7revino, the
Fifth Circuit determined that the Plaintiffs’ claims that they
were discriminatorily terminated because they pursued their
rights under the workers' compensation laws were not
preempted even though they involve the interpretation of
detailed LOA provisions in the CBA. This Court has not
considered whether the workers' compensation discrimination
claim of an employee who was terminated in accordance with
LOA provisions in a CBA is preempted by § 301.
The Fifth Circuit's ruling in this case has done exactly
what the Allis-Chalmers Court warned against, it has elevated
form over substance because a worker who is injured on the job
and subsequently terminated under the terms of a CBA will
always be able to evade the grievance and arbitration procedure
of a CBA by labeling his claim as one for workers’
compensation discrimination. The effect of the Fifth Circuit's
ruling is to create a class of employees (i.e., workers with
on-the-job injuries) who are immune from the well-established
rule that they must arbitrate claims involving the CBA. The
Fifth Circuit's decision will result in a patently unfair system
23
whereby a large class of employees can easily escape their
obligations under the grievance and arbitration procedures of
a CBA by merely relabeling their claims. This will not have an
isolated impact on labor relations in the United States because
the vast majority of CBAs in this country, like the one involved
in this case, contain provisions governing LOAs and establish
ramifications for employees who fail to comply with those
provisions. As held in Allis-Chalmers, "[e)xclusion of such
claims ‘from the ambit of § 301 would stultify the
congressional policy of having the administration of collective
bargaining contracts accomplished under a uniform body of
federal substantive law." 471 U.S. at 211 (quoting Smith v.
Evening News Ass'n, 371 U.S. 195 (1962)).
Conclusion
For the foregoing reasons, LS&CO. respectfully requests
that the Court grant its petition for writ of certiorari and hear
this case.
Respectfully submitted,
Mario A. Barrera
Counsel of Record
BRACEWELL & PATTERSON, L.L.P.
800 Une Alamo Center
106 S. St. Mary's Street
San Antonio, Texas 78205
Telephone: (210) 299-1166
Facsimile: (210) 299-1133
Attorney for Petitioner
APPENDIX
APPENDIX TABLE OF CONTENTS
Decision of the Fifth Circuit ................... App. 1
Order of the Fifth Circuit Denying Rehearing ...... App. 2
Relevant Statutory Provisions Cus ine ee eaten en App. 3
p ti fe 2. re ere ers App. 3.1
Labor Management Relations Act |
Be OE bk New oe ne eek euv aes App. 3.2
Texas Labor Code § 451.001 ............. App. 3.3
Relevant Unpublished Opinions
Beckwith v. Diesel Tech. Co.,
No. 99-1548, 2000 WL 761808
(Gt Cis., Mine 30, 2000)... eee eccas App. 4
Roberts v. Autoalliance Int'l, Inc.,
No. 92-1447, 1993 WL 210717
(oe ae 8S) eer App. 5
Sanders v. Hughes Aircraft Co.,
No. 93-56378, 1994 WL 227971
(Sth Cir., May 27, 1994)... 0... ee cece eees App. 6
Smith v. WGBH Educ. Found., Inc.,
No. 93-1213, 1993 WL 375816
{ie A. | ee er oen App. 7
Thornton v. Denny's, Inc.,
No. 92-1368, 1993 WL 137078
(te ae) ee App. 8
App. 1.1
Agustina TREVINO, Herminia Herrera,
Beatriz Olivarez and Gloria Guajardo,
Plaintiffs-Appellants,
Vv.
Mike RAMOS; et al., Defendants,
Levi Strauss & Co., Defendant-
Appellee.
No. 97-41493.
United States Court of Appeals,
Fifth Circuit.
Dec. 7, 1999.
Terminated employees brought state court action against
employer alleging retaliatory discharge in violation of Texas
Workers' Compensation Act and intentional infliction of
emotional distress. Employer removed action to federal court.
The United States District Court for the Southern District of
Texas, Peter E. Ormsby, United States Magistrate Judge,
denied employees’ motion to remand and entered summary
judgment in favor of employer. Employees appealed. The
Court of Appeals, Robert M. Parker, Circuit Judge, held that:
(1) resolution of retaliatory discharge claims did not require
interpretation of collective-bargaining agreement (CBA), and
claims thus were not pre-empted by Labor Management
Relations Act(LMRA), and (2) remand ofretaliatory discharge
claims to state court was required by statute prohibiting
removal of civil action in state court arising under state
workers' compensation laws.
App. 1.2
Reversed and remanded in part; vacated in part.
1. Labor Relations 46
The intent of LMRA's pre-emptive reach is to fashion a
uniform body of law regarding collective bargaining
agreements and other labor contracts. Labor Management
Relations Act, 1947, § 301(a), 29 U.S.C.A. § 185(a).
2. Labor Relations 758.1, 773.1
States 18.46
If the resolution of a state-law claim depends upon the
meaning of a collective-bargaining agreement (CBA), the
application of state law is pre-empted and federal labor-law
principles must be employed to resolve the dispute. Labor
Management Relations Act, 1947, § 301(a), 29 U.S.C.A.
§ 185(a).
3. Labor Relations 45
States 18.46
The LMRA pre-empts application of a state law only if
such application requires the interpretation of a collective-
bargaining agreement (CBA). Labor Management Relations
Act, 1947, § 301(a), 29 U.S.C.A. § 185(a).
App. 1.3
4. Master and Servant 34.1
States ->18.49
Resolution of terminated employees' claims of retaliatory
discharge under Texas Workers' Compensation Act did not
require interpretation of collective-bargaining agreement
(CBA), and claims thus were not pre-empted by LMRA,
inasmuch employees' right to be free from retaliation would
have existed even if there had been no CBA, and the primary
issue was factual question of motivation, that is, whether
employer terminated employees in retaliation for filing
workers' compensation claims. Labor Management Relations
Act, 1947, § 301(a), 29 U.S.C.A. § 185(a); V.T.C.A., Labor
Code § 451.001(1).
5. Master and Servant ©>30(6.20)
Torecover for retaliatory discharge or other discrimination
under the Texas Workers' Compensation Act, an employee
must show that the employer's discriminatory action would not
have occurred when it did had the workers' compensation claim
not been filed; this purely factual question centers on the
employee's conduct and the employer's motivation. V.T.C.A.,
Labor Code § 451.001(1).
6. Master and Servant ©>30(6.20)
To defend against a claim of retaliatory discharge under
the Texas Workers' Compensation Act, an employer must show
that it had anon-retaliatory reason for the discharge. V.T.C.A.,
Labor Code § 451.001(1).
App. 1.4
7. Master and Servant 34.1
States 18.49
Even if a claim of retaliatory discharge under the Texas
Workers' Compensation Act implicates a collective-bargaining
agreement (CBA), that fact does not necessarily require pre-
emption of the claim by the LMRA. Labor Management
Relations Act, 1947, § 301(a),29U.S.C.A. § 185(a); V.T.C.A.,
Labor Code § 451.001(1).
8. Labor Relations 758.1, 773.1
States 18.46
LMRA pre-emption occurs when resolution of a state
claim is inextricably intertwined with consideration of terms of
a labor contract or when the application of a state law to a
dispute requires interpretation of a collective-bargaining
agreement (CBA). Labor Management Relations Aci, 1947,
§ 301(a), 29 U.S.C.A. § 185(a).
9. Removal of Cases 3, 101.1
Remand to state court of retaliatory discharge claims filed
under Texas Workers' Compensation Act was required by
statute prohibiting removal to federal district court of any civil
action in state court arising under state workers' compensation
laws. 28 US.C.A. § 144S(c); V.T.C.A., Labor Code
§ 451.001(1).
App. 1.5
10. Removal of Cases -3
Removal of any state workers' compensation claims is
prohibited by statute providing that civil action in state court
arising under state workers’ compensation laws may not be
removed to any federal district court. 28 U.S.C.A. § 1445(c).
Chris Anthony Bnisack (argued), Neil Ernest Norquest,
Norquest & Brisack, McAllen, TX, L. Aaron Pena, Jr., Aaron
Pena & Associates, Edinburg, TX, for Plaintiffs-Appellants.
George P. Parker, Jr. (argued), Raquel G. Perez, Bracewell
& Patterson, San Antonio, TX, for Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Texas.
Before EMILIO M. GARZA and PARKER, Circuit
Judges, and COBB, District Judge.'
ROBERT M. PARKER, Circuit Judge:
Plaintiffs appeal the district court’s denial of their motion
to remand. Because plaintiffs’ claim for retaliatory discharge
is not pre-empted by federal law and because 28 U.S.C.
§ 1445(c) (1994) precludes removal of claims arising under the
workers’ compensation laws of any state, we find that the
district court erred in denying plaintiffs’ motion to remand.
REVERSED.
' District Judge of the Eastern District of Texas, sitting by
designation.
App. 1.6
I. FACTUAL HISTORY AND PROCEEDINGS BELOW.
Plaintiffs? complaint alleges that they were discharged for
exercising their nghts under the Texas Workers’ Compensation
Act. Defendant counters that plaintiffs were discharged in
accordance with policies outlined in its Collective-Bargaining
Agreement ("CBA") with plaintiffs’ union. Plaintiffs’ original
complaint asserted claims for intentional infliction of emotional
distress’ and retaliatory discharge. The defendant removed the
case to federal court. The district court denied plaintiffs’
motion to remand because "[a]t the critical time of removal,
plaintiffs’ state court petition asserted at least one claim
[intentional infliction of emotional distress] that was
completely preempted by federal law and thus the entire case
was properly removable."
Defendant subsequently filed motions for summary
judgment based on the merits of plaintiffs’ claims. The district
court granted defendant’s motions and dismissed plaintiffs’
claims with prejudice because of a lack of evidence of a causal
connection between plaintiffs’ terminations and their assertion
of workers’ compensation nights.
Plaintiffs’ appeal the judgment of the district court.
Specifically, plaintiffs argue that the trial court erred in denying
? All named plaintiff-appellants will be referred to collectively as
plaintiffs.
* This claim is no longer a part of plaintiffs’ complaint. After the
case was removed to federal court, plaintiffs moved for leave to file
amended pleading that eliminated the intentional infliction of emotional
distress claim.
App. 1.7
Plaintiff-Appellants’ Motion to Remand, and in retaining
jurisdiction over this case.
II. PRE-EMPTION.
A. Section 301 of LMRA.
Section 301 of the Labor Management Relations Act
(LMRA) states:
Suits for violation of contracts between an employer
and a labor organization representing employees in an
industry affecting commerce. . . or between any such
labor organizations, may be brought in any district
court in 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) (1994).
[1] Theintent of LMRA’s pre-emptive reach is to fashion
a uniform body of law regarding collective bargaining
agreements and other labor contracts. In Teamsters v. Lucas
Flour Co., 369 U.S. 95, 103, 82 S. Ct. 571, 7 L.Ed.2d 593
(1962), the Supreme Court held that "the subject matter of
§ 301(a) is particularly one that calls for uniform law." The
Court’s discussion of the policy behind § 301's pre-emptive
scope bears repeating:
The possibility that individual contract terms might
have different meanings under state and federal law
would inevitably exert a disruptive influence upon
both the negotiation and administration of collective
agreements. Because neither party could be certain of
App. 1.8
the rights which it had obtained or conceded, the
process of negotiating an agreement would be made
immeasurably more difficult by the necessity of trying
to formulate contract provisions in such a way as to
contain the same meaning under two or more systems
of law which might someday be invoked in enforcing
the contract... .
The importance of the area which would be
affected by separate systems of substantive law makes
the need for a single body of federal law particularly
compelling. The ordering and adjusting of competing
interests through a process of free and voluntary
collective bargaining is the keystone of the federal
scheme to provide industrial peace.
Lucas Flour, 369 U.S. at 103-04, quoted with approval in
Lingle v. Norge Div. of Magic Chef, 486 U.S. 399, 404 n.3, 108
S. Ct. 1877, 100 L.Ed.2d 410 (1988).
[2] The principle of § 301 pre-emption developed in
Lucas Flour can be stated as follows: "[I]f the resolution of a
state-law claim depends upon the meaning of a collective-
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." Lingle, 486
U.S. at 405-06.
B. Section 451.001 of the Texas Labor Code.
[3, 4] Pursuant to Texas statute, "A person may not
discharge or in any other manner discriminate against an
App. 1.9
employee because the employee has . . . filed a workers’
compensation claim in good faith." TEX. LABOR CODE ANN.
§ 451.001(1) (West 1997). As noted above, § 301 pre-empts
application of a state law “only if such application requires the
interpretation of a collective-bargaining agreement." Lingle,
486 US. at 413. Thus, if the resolution of plaintiffs’ claims of
retaliatory discharge under § 451.001 does not require
interpretation of the CBA, they are not pre-empted.
[5] In order to recover under § 451.001, an employee
must show that the employer’s discriminatory action "would
not have occurred when it did had the worker’s compensation
claim not been filed." Stevens v. National Educ. Centers, Inc.,
990 S.W.2d 374, 380 (Tex. App.~Houston [14th Dist.] 1999,
writ requested) (citing Continental Coffee Prods. Co. v.
Cazarez, 937 S.W.2d 444, 450 (Tex. 1996)). This purely
factual question centers on the employee’s conduct and the
employer’s motivation. “Neither of [these] elements requires
a court to interpret any term of a collective-bargaining
agreement." Lingle, 486 U.S. at 407, 108 S. Ct. 1877.
[6] To defend against a claim of retaliatory discharge, an
employer must show that it had anon-retaliatory reason for the
discharge. This question also does not "turn on the meaning of
any provision of a collective-bargaining agreement." Jd.
In a retaliatory discharge case, "[a]s the Supreme
Court pointed out in Lingle, the court’s task is
complete . . . when it determines, as a factual matter,
whether the employer’s motivation for the discharge
was the employee’s filing of a worker’s compensation
claim or some other motive." If it determines that
retaliation was not a motive, it does not need to
App. 1.10
determine whether other motives were legitimate or
whether the CBA justified them.
Jones v. Roadway Express, Inc., 936 F.2d 789, 791-91 (Sth Cir.
1991) (“Roadway II"), seealso Jones v. Roadway Express, Inc.,
931 F.2d 1086, 1090 (Sth Cir. 1991) ("Roadway I") (citation
omitted) ("[W]e do not require that the CBA be irrelevant to the
dispute; either party may still use the CBA to support the
credibility of its claims.").
[7, 8] Even if the plaintiffs’ retaliatory discharge claim
implicated the CBA, that fact would not necessarily require
pre-emption of the claim. "[C]laims only tangentially
involving provisions of collective-bargaining agreements are
not preempted by section 301." Thomas v. LTV Corp., 39 F.3d
611, 617 (Sth Cir. 1994); see also Livadas v. Bradshaw, 512
U.S. 107, 123, 114 S. Ct. 2068, 129 L.Ed.2d 93 (1994)
("[W]hen the meaning of 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."). "A plaintiff's
state law claims will not be preempted even when they are
‘intertwined’ with a CBA, so long as they are not ‘inextricably
intertwined’ with it.". Roadway I, 931 F.2d at 1089. In other
words, pre-emption occurs when resolution of a state claim is
inextricably intertwined with consideration of terms of the
labor contract or when the application of a state law to a dispute
requires interpretation of the collective-bargaining agreement.
Defendants argue that a finding of pre-emption is
mandated by our decision in Reece v. Houston Lighting &
Power Co., 79 F.3d 485 (1996). As noted by the district court,
applying defendant’s analysis requires the unjustified
App. 1.11
conclusion that the Reece court overruled our holding in
Roadway I.
The present case involves the same type of retaliatory
discharge workers’ compensation claim brought under
the same Texas statute, which has now been
recodified as Texas Labor Code § 451. In contrast,
the decision in Reece addressed whether the LMRA
preempted a different provision of the Texas Labor
Code prohibiting racial discrimination in
employment. The Reece court did not cite Roadway
and nothing in the opinion suggests that the court
intended to modify, let alone overrule, the decision in
Roadway. Unless and until the Fifth Circuit revisits
its Roadway holding, that precedent is binding on this
Court.
(Memorandum Order, June 5, 1997 at 2).
Interpretation of the CBA is not necessary for the
resolution of this case. The primary issue in this case is the
factual question of motivation: Did the defendant fire the
plaintiffs in retaliation for filing worker’s compensation
claims? The answer to this question is not dependent on an
interpretation of the CBA.
Plaintiffs have an independent right to file workers’
compensation claims without fear of losing their jobs. As we
previously stated:
[T]he right to be free from retaliatory discharge for
pursuing workers’ compensation exists for Jones, as
it did for the employee in Lingle, independently of the
CBA. The right originates in the statute which Texas
App. 1.12
has enacted to protect employees seeking
compensation for work-related injuries. It does not
depend on any right or duty originating in the CBA.
Jones’ right would exist even if there were no CBA.
The right that Jones claims accrues to employees "as
individual workers, not as members of a collective
organization."
Roadway I, 931 F.2d at 1090 (emphasis added) (citations
omitted); cf Lingle, 486 U.S. at 411 ("[T]here is nothing novel
about recognizing that substantive nghts in the labor relations
context can exist without interpreting collective bargaining
agreements.").
Plaintiffs’ retaliatory discharge claims do not require
interpretation of the CBA for resolution, therefore, they are not
pre-empted by § 301 of the LMRA.
Il. REMAND OF THE RETALIATORY DISCHARGE
CLAIM.
[9] Having established that plaintiffs’ retaliatory
discharge claim is not pre-empted, we now turn to the issue of
whether the district court properly denied plaintiffs’ motion to
remand. Although the question confronting us is whether the
case should be remanded to state court, rather than whether the
defendant properly removed the case to federal court, the issue
of removal controls our analysis. See Roadway I, 931 F.2d at
1091.
In an effort to control the ever-increasing flow of
compensation cases into already strained federal dockets,
Congress declared such actions non-removable.
App. 1.13
A civil action in any State court arising under the
workmens’ compensation laws of such State may not
be removed to any district court of the United States.
28 U.S.C. 1445(c) (1994). This section "reflects a strong
congressional policy that where the state court has been utilized
by one of the parties in the state compensation machinery, the
case should remain in the state court for its ultimate
disposition." Kay v. Home Indemnity Co., 337 F.2d 898, 902
(Sth Cir. 1964). We remain convinced that workmen’s
compensation cases “have little real business in a federal
court," and have therefore, been reluctant "to strain to find a
way to entertain" such suits. Jd. at 901.4
[10] In Sherrod vy. American Airlines, Inc., we held that
"1445(c) prohibits the removal of any state worker’s
compensation claims." 132 F.3d 1112, 1118 (Sth Cir. 1998).
This bright-line rule is consistent with the wording of
§ 1445(c). See Roadway I, 931 F.2d at 1092 ("Because
Congress intended that all cases arising under a state’s workers’
compensation scheme remain in state court, we believe that we
should read section 1445(c) broadly to further that purpose.").
In that vein, we find that the district court erred in denying
plaintiffs’ motion to remand their retaliatory discharge claim.*
* We have already held that a claim filed under § 451.001 is one
“arising under the workers’ compensation law" for purposes of § 1445(c).
See Roadway I, 931 F.2d at 1092.
* After reversing the district court’s order denying the plaintiffs’
motion to remand, the issue of whether the district court erred by granting
defendant’s motion for summary judgment regarding the merits of
plaintiffs’ claims becomes moot.
| es
App. 1.14
IV. CONCLUSION.
For the foregoing reasons, we REVERSE the district
court’s order denying plaintiffs’ motion to remand and
REMAND this case to the district court with instructions to
remand to the state court. In addition, we VACATE the district
court’s ruling on the causal connection between plaintiffs’
terminations and their workers’ compensation claims.
App. 2.1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41493
AGUSTINA TREVINO, HERMINIA HERRERA,
BEATRIZ OLIVAREZ, GLORIA GUAJARDO,
Plaintiffs-Appellants
v.
MIKE RAMOS, ET AL
Defendants
LEVI STRAUSS & CO.
Defendant - Appellee
Appeal from the United States District Court for the
Southern District of Texas, McAllen
FILED
JUN 26, 2000
CHARLES R. FULBRUGE III, CLERK
N_ PETITION FOR RE EN BANC
(Opinion 12/7/99, 5 Cir., , F.3d )
App. 2.2
Before EMILIO M. GARZA and PARKER, Circuit Judges,
and COBB,* District Judge.
PER CURIAM:
(W%) Treating the Petition for Rehearing En Banc asa
Petition for Panel Rehearing, the Petition for Panel Rehearing
is DENIED. No member of the panel nor judge in regular
active service of the court having requested that the court be
polled on Rehearing En Banc (FED. R. App. P. and STHCIR. R.
35), the Petition for Rehearing En Banc is DENIED.
( ) Treating the petition for Rehearing En Banc as a
Petition for Panel Rehearing, the Petition for Panel Rehearing
is DENIED. The court having been polled at the request of one
of the members of the court and a majority of the judges who
are in regular active service not having voted in favor (FED. R.
AppP. P. and STH CIR. R. 35), the Petition for Rehearing En Banc
is DENIED.
ENTERED FOR THE COURT:
/s/
United States Circuit Judge
REHG-6a
CLERK'S NOTE:
SEE FRAP AND LOCAL
RULES 41 FORSTAY OF THE
MANDATE
OO
App. 3.1
Relevant Statutory Provisions
28 U.S.C. § 1445(c)
A civil action in any State court arising under the
workmen's compensation laws of such State may not
be removed to any district court of the United States.
App. 3.2
Labor Management Relations Act, 29 U.S.C. § 185(a).
Suits by and against labor organizations
(a) Venue, amount, and citizenship
Suits for violation of contracts between an
employer and a labor organization representing
employees in an industry affecting commerce as
defined in this chapter, or between any such labor
organizations, may be brought in any district court of
the Untied States having jurisdiction of the parties,
without respect to the amount in controversy or
without regard to the citizenship of the parties.
App. 3.3
Texas Labor Code § 451.001:
Discrimination Against Employees Prohibited
A person may not discharge or in any other
manner discriminate against an employee because the
employee has:
(1) filed a workers' compensation claim in
good faith;
(2) hireda lawyer torepresent the employee
in a claim;
(3) instituted or caused to be instituted in
good faith a proceeding under
Subtitle A; or
(4) testified or is about to testify in a
proceeding under Subtitle A.
App. 4.1
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions
Without Reported Opinions" appearing in the Federal Reporter.
Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules
regarding the citation of unpublished opinions.)
United States Court of Appeals, Sixth Circuit.
William BECK WITH; Karen Beckwith,
Plaintiffs-Appellants,
v.
DIESEL TECHNOLOGY CO., Defendant-Appellee.
No. 99-1548.
May 30, 2000.
On Appeal from the United States District Court for the
Western District of Michigan.
Before ENGEL, JONES, and COLE, Circuit Judges.
OPINION
COLE, Circuit Judge.
**] Plaintiffs-Appellants Karen and William Beckwith appeal
the district court's grant of summary judgment to
Defendant-Appellee Diesel Technology Co. ("DTC"). On
appeal, the Beckwiths argue that the district court erred in two
respects: first, by concluding that Karen's wrongful discharge
claim was preempted by § 301 of the Labor Management
Relations Act of 1947 (LMRA), 29 U.S.C. § 185; and second,
App. 4.2
by concluding that both William's and Karen's claims of
intentional infliction of emotional distress (IIED) were based
on acts insufficiently extreme and outrageous to exempt them
from preemption under § 301 of the LMRA. For the following
reasons, we AFFIRM the order of the district court.
I. BACKGROUND
Both Karen and William began working for DTC in 1994.
Both were members of the United Auto Workers, Local 167
("UAW"), the exclusive bargaining representative for all DTC's
production and maintenance employees. Their employment
was governed by a collective bargaining agreement ("CBA")
between DTC and UAW.
In August 1995, William was injured on the job. He took
disability leave from November 1995 until July 1996, and
retumed to work on light duty. He took another disability leave
from May 1997 until June 1998, and again returned to work on
light duty. William was still working for DTC ina light duty
position at the time of this suit. William filed a worker's
compensation claim pursuant to the Michigan Worker's
Disability Compensation Act, Mich. Comp. Laws Ann.
§ 418.101 et seq., which DTC disputed.
Karen was terminated on November 6, 1996 for violating
DTC's attendance policy. She had been absent from work two
days earlier in order to accompany her husband to a scheduled,
non-emergency medical appointment. The UAW grieved the
discharge pursuant to the CBA, and the issue went to
arbitration on November 24, 1997. At arbitration, the UAW
argued that Karen should have been permitted to cover her
absence of November 4, 1996 with an "after the fact" vacation
day. The union did not dispute that Karen had a poor
App. 4.3
attendance record and that DTC had previously used
progressive discipline to deal with Karen's absenteeism, but
rather argued that the company's history of leniency in dealing
with employee absences had led Karen to believe that she
would not jeopardize her job by missing work without
requesting leave in advance. In a written decision issued on
February 23, 1998, the arbitrator found "no basis for [Karen] to
reasonably expect that an after the fact vacation day would be
approved," and concluded that management had just cause to
dismiss Karen.
In January 1999, William and Karen filed a two-count
complaint against DTC in the Kent County Circuit Court in
Michigan. In count one, the plaintiffs charged that Karen was
wrongfully discharged by DTC, andthatthecompany'sreliance |
on Karen's attendance record was a pretext for its effort to
retaliate against William for his worker's compensation claims.
In count two, the Beckwiths charged that, from the time of
William's injury in August 1995, DTC harassed and
intimidated both of them in order "to inflict sufficient
emotional distress or discomfort that either or both Plaintiffs
would voluntarily terminate there [sic] employment," and that
they had suffered physical and emotional discomfort as a direct
and proximate result of DTC's harassment.
**2 Shortly after the district court granted DTC's motion to
remove the case to federal court, DTC moved for summary
judgment. After conducting a hearing on the motion on
April 16, 1999, the court granted DTC's motion for summary
judgment. In an oral ruling, the court found that Karen's claim
of retaliatory discharge was preempted by § 301 of the LMRA'
' Section 301 provides that:
(continued...)
a
App. 4.4
because its resolution would require the court to interpret the
CBA; the court then dismissed the claim because it was filed
well after the six-month statute of limitations. See
Del Costello v. International Bhd. of Teamsters, 462 U.S. 151,
169 (1983). The court also found that the ITED claims were
preempted, and that there was no genuine issue of material fact
regarding whether DTC's conduct had been outrageous or
extreme, because it clearly was not.
The court issued a written summary order of dismissal, and the
Beckwiths filed a timely notice of appeal.
Il. STANDARD OF REVIEW
We review the district court's grant of summary judgment
de novo. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.
1997). Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is entitled
to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In
deciding a motion for summary judgment, the district court
must view the factual evidence in the light most favorable to
the non-moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
non-moving party may not rest on its pleadings, but rather must
' (...continued)
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, without respect to the amount in controversy or without
regard to the citizenship of the parties. 29 U.S.C. § 185(a). "Since 1962,
the Supreme Court has held that section 301 preempts state law rules that
substantially implicate the meaning of collective bargaining agreement
terms." DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir .1994).
This court's interpretation of § 301 is discussed, infra.
4
App. 4.5
put forward evidence from which a rational trier of fact could
find in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986).
Il. WRONGFUL DISCHARGE
On appeal, Karen argues that the district court erred by finding
that her wrongful discharge claim was preempted by § 301 of
the LMRA.? In general, if a state law claim brought by a union
member plaintiffrequires interpretation of the governing CBA,
§ 301 demands preemption. See Caterpillar Inc. v. Williams,
482 U.S. 386, 394 (1987). In Lingle v. Norge Division of
Magic Chef, Inc., 486 U.S. 399 (1988), the Supreme Court
stated the governing principle for § 301 preemption cases:
if the resolution of a state-law claim depends upon the meaning
of a collective-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
preempted and federal labor-law principles—necessarily
uniform throughout the Nation--must be employed to resolve
the dispute.
Id. at 405-06. This circuit detailed its two-step approach to
deciding whether § 301 preemption applies in DeCoe v.
General Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994):
First, the district court must examine whether proof of the state
law claim requires interpretation of collective bargaining
agreement terms. Second, the court must ascertain whether the
right claimed by the plaintiff is created by the collective
? The Beckwiths concede that, if the district court was correct in
ruling that § 301 preempts Karen's claim, the claim is time-barred.
Od ale eatin aR A sede OND kes I TB
ABT LE RON Mtns ean Pett wee Ds LD
2 NET, tae: UR a tle:
ih eth RN natin WEY Dye NS
App. 4.6
bargaining agreement or by state law. If the right is borne of
state law and does not invoke contract interpretation, then there
is no preemption. However, if neither or only one criterion is
satisfied, section 301 preemption is warranted.
**3 Id. (citations omitted).
Karen admits that the district court was correct to apply the
two-part test enunciated in DeCoe and concedes that she was
terminated under the "apparent authority" of the CBA on the
basis of excessive tardiness. She claims, however, that the true
question before the court is whether DTC fired her in response
to her husband's worker's compensation claim, and that
resolution of that question does not require interpretation of the
CBA.
Karen's claim fails under the first prong of the DeCoe test
because proof of the retaliatory discharge claim "requires
interpretation of collective bargaining agreement terms."
DeCoe, 32 F.3d at 216. In applying the first prong, we "look{[ ]
to the essence of the plaintiff's claim, in order to determine
whether the plaintiff is attempting to disguise what is
essentially a contract claim as atort." Jd. Only if the plaintiff
can prove all the elements of her claim without requiring the
court to examine the CBA does her claim escape preemption.
Id. Karen describes her claim on appeal as follows. She argues
that under Michigan law, the retaliatory discharge of an
employee in response to that employee filing a worker's
compensation claim is actionable in tort; Karen then argues that
her own claim—as the spouse of the employee filing the
workers compensation claim--is a natural extension of
Michigan law. Karen further claims that the retaliation in this
case came in the form of a hostile work environment that was
intended to force her to quit; since the CBA did not provide for
a stress-free or non-hostile work environment, Karen argues
App. 4.7
that the court could resolve her claim without construing the
CBA.
It is unlikely that Karen can even state a claim under Michigan
law: she acknowledges that the Michigan law authorizing tort
relief for workers who are fired in response to filing worker's
compensation claims, see M.C.L.A. § 418.301(11), has not yet
been extended to the worker's family members. More
important, the court hearing Karen's case will have to interpret
the CBA. In the complaint, Karen claimed that DTC's reason
for terminating her--repeated absenteeism--was a pretext for
firing her in response to her husband's worker's compensation
claim. At trial, DTC's defense would surely be that it fired
Karen because she failed to abide by the terms of the CBA, and
that it disciplined and then terminated her pursuant to the CBA.
A court will have to interpret the CBA, which requires that
"[a]ll vacation time off must be pre-approved," and which
permits DTC to discipline employees, to see if that defense is
valid. Becauseresolution of Karen's retaliatory discharge claim
would "require [ ] interpretation of collective bargaining
agreement terms," DeCoe, 32 F.3d at 216; see also Lingle,
486 U.S. at 405-06, Karen's claim is preempted.’
3 The Beckwiths point to Lingle, 486 U.S. 399 (holding that
employee's state law claim of retaliatory discharge was not preempted by
§ 301 because it did not require interpretation of pertinent CBA), and this
court's decision in Smolarek v. Chrysler Corp., 879 F.2d 1326, 1331
(6th Cir. 1989) (en banc) (holding that employee's Michigan law claim of
retaliatory discharge for filing a worker's compensation claim did not
implicate CBA) to support tiicir argument that Karen's retaliation charge is
not preempted. As the district court found, the facts of this case do not
present simply an employer's discharge of a worker because that worker
filed or could potentially file for worker's compensation benefits. See
Lingle, 486 U.S. at 401; Smolarek, 879 F.2d at 1328-29. Rather, Karen
admits that DTC's stated reason for terminating her was her "excessive
(continued...)
er ee a
App. 4.8
In addition, Karen has put forth virtually no evidence beyond
her complaint that her discharge was wrongful. Because
resolution of Karen's wrongful termination claim would require
recourse to the CBA, and because she has offered virtually no
evidence of her wrongful discharge, the district court's grant of
summary judgment on Karen's claim of wrongful termination
was proper.
IV. INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS (IED)
**4 The Beckwiths next argue that the district court erred by
granting summary judgment to DTC on their IED claims. The
Beckwiths essentially argue that DTC harassed them in
retaliation for William filing a worker's compensation claim,
and that since nothing in the CBA protects them from this type
of harassment, interpretation of the CBA is unnecessary to
resolution of their claims. Thus, the Beckwiths argue, their
claims are not preempted. DTC responds that both Karen and
William will have to resort to the CBA to prove their ITED
claims, and that even if the Beckwiths' ITED claims are not
preempted, they have failed to allege conduct sufficiently
extreme and outrageous to state a claim under Michigan law.
This court's inquiry is again guided by the two-pronged
question posed in DeCoe: whether the plaintiffs' state law claim
requires interpretation of the CBA, and whether the right
claimed derives from the CBA or state law. See DeCoe,
3 (...continued)
tardiness." Appellants' Br. at 18. Resolution of her case would require the
court to interpret the CBA to evaluate whether DTC terminated Karen in
accordance with its rights under the CBA. See Lingle, 486 U.S. at 413;
DeCoe, 32 F.3d at 216. As such, Karen's claim is preempted.
App. 4.9
32 F.3d at216. Although the Michigan Supreme Court has yet
to recognize the tort of IIED, see Andrews v. Prudential
Securities, Inc., 160 F.3d 304, 309 (6th Cir. 1998) (citing
Roberts v. Auto-Owners Ins. Co., 374 N.W.2d 905, 906
(Mich.1985)), this court has assumed that the Michigan
Supreme Court would recognize such a tort under appropriate
circumstances, and that it would analyze the tort using the
definition found in the Restatement (2d) of Torts. See id.,;
DeCoe, 32 F.3d at 218. To establish a prime facie case of
ITED, a plaintiff must establish the following four elements:
1) extreme and outrageous conduct; 2) intent or recklessness;
3) causation; and 4) severe emotional distress. See Andrews,
160 F.3d at 309. The defendant's conduct must be “so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community." Jd.
(citations and quotations omitted). The defendant will be liable
only "where the distress inflicted is so severe that no reasonable
man could be expected to endure it." /d. (citation and
quotation omitted).
Neither of the Beckwiths state an IED claim under Michigan
state law. As the district court found, the conduct that the
Beckwiths allege does not even approach the level of
outrageousness required to satisfy the first element of an ITED
claim. See Hartleip v. McNeilab, Inc., 83 F.3d 767, 777
(6th Cir.1996) (finding plaintiffs allegations of sexual
harassment insufficient to establish outrageousness under
Michigan law); Rush v. United Technologies, 930 F.2d 453,
456-57 (6th Cir. 1991) (finding that terminated employee failed
to allege facts sufficient to state ITED claim under Michigan —
law); Polk v. Yellow Freight Sys., Inc., 801 F.2d 190, 196-97
(6th Cir. 1986) (discharged employee who failed to obey
instruction of employer failed to state ITED claim). By failing
he lie SE ANN MI AEE a Oe NC tbe wi ib Ht a MM DD Ob teal 1 co
Pitt
App. 4.10
to allege acts of sufficient outrageousness, the Beckwiths'
claims fail, preempted or not. See Adkins v. General Motors
Corp., 946 F.2d 1201, 1213 (6th Cir. 1991) (finding state
interest in adjudicating plaintiffs' emotional distress claims too
insubstantial to defeat complete preemption where plaintiffs
failed to make specific allegations of outrageous conduct on
part of union or employer); Slone v. Martin Marietta Energy
Sys., No. 95-4182, 1997 WL 139794 (6th Cir. Mar. 26, 1997)
(upholding grant of summary judgment to defendant in federal
labor action where plaintiff failed to allege facts outrageous
enough to state a claim of IIED under state law); see also
DeCoe, 32 F.3d at 219-20 (section 301 preempts Michigan
ITED claim where court must refer to CBA to determine if
defendant acted outrageously).
V. CONCLUSION
**5 For the reasons discussed above, we AFFIRM the
judgment of the district court.
App. 5.1
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions
Without Reported Opinions" appearing in the Federal Reporter.
Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules
regarding the publication and citation of unpublished opinions. )
United States Court of Appeals, Sixth Circuit.
Donna ROBERTS, Plaintiff-Appellant,
v.
AUTOALLIANCE INTERNATIONAL, INC.,
Defendant-Appellee.
No. 92-1447.
June 15, 1993.
On Appeal from the United States District Court for the Eastern
District of Michigan, No. 90-73398, Hackett, J.
E.D.Mich.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Before BOGGS and BATCHELDER, Circuit Judges, and
MANOS, Senior District Judge.'
PER CURIAM.
' The Honorable John M. Manos, United States District Judge for
the Northern District of Ohio, sitting by designation.
———————————
App. 5.2
**1 Roberts appeals the district court's denial of her motions to
amend her complaint and the summary disposition of her
complaint. We find that the district court abused its discretion
in refusing to permit Roberts to delete a paragraph from her
complaint. Our ruling follows from our finding that the district
court erroneously held that count I of Roberts's complaint
would have been preempted by Labor Management Relations
Act § 301 even if Roberts's proposed changes had been
permitted.
I
i A. Facts
Donna Roberts joined Defendant Mazda Motor Manufacturing?
as an assembly line worker on February 29, 1988. After ashort
training program, she entered the Trim and Final Department
and performed repetitive hand, wrist, and arm motions for over
forty hours per week. In June 1988, she complained of hand
: and wrist pain, and one of Mazda's doctors restricted her to
doing light tasks.
i Roberts's supervisor allegedly refused to honor the medical
restrictions and insisted that she perform her line job. After a
second visit to Mazda's doctors, Roberts was given similar
orders restricting her work and, upon Roberts's return, her
i supervisor allegedly made her wash floors because he said that
was the only work he had available for her. Mazda then gave
Roberts a different assembly line job, but after she found that
she could not do this job either, she was placed on medical
leave. In August 1988, Roberts was called back to work and
given a temporary job answering phones while the
? Mazda Motor Manufacturing has been renamed AutoAlliance
International, inc. Because Roberts was employed by Mazda, we refer to
the defendant as Mazda instead of AutoAlliance.
App. 5.3
computerized phone system was being repaired, but when that
job ended, Mazda told Roberts they had no work for her to do.
Roberts was returned to medical leave and began participating
in Mazda's salary continuation program.
In September 1988, Roberts filed for workers’ compensation
alleging that she suffered from bilateral carpal tunnel syndrome
as aresult of her work. Mazda disputed the claim, arguing that
Roberts's injury was not work-related. She was found disabled
for a closed period and she appealed that decision.
In August 1989, after receiving 52 weeks of partial pay under
the salary continuation program, Roberts's seniority was
terminated in accordance with the collective bargaining
agreement ("CBA") because she was unable to return to work.
Her termination letter reminded her that she could apply for
long term disability benefits, which she did, and benefits were
approved. She also complained to her union about the
termination of her seniority and the union filed a grievance
with Mazda. |
In September 1990, the union and Mazda met to discuss several
labor relations issues, including the policy of terminating
workers’ seniority upon expiration of the 52 weeks of partial
salary. Mazda agreed to restore seniority to the workers who
were discharged under this plan and Roberts's employment
status was returned to "inactive," which was her status in
August of 1989.° Roberts's "inactive" employment status was
guaranteed through the expiration of the CBA on
March 3,1991.
> Roberts was reinstated despite the fact that she did not precisely
fit the terms of the union-Mazda deal
App. 5.4
**2 In October 1990, Roberts filed a three-count complaint in
the Wayne County Circuit Court.
In November 1991, during the pendency of this case, Roberts's
long-term disability benefits were terminated (as was
appropriate under the Employee Benefit Plan) and her seniority
was terminated pursuant to the provisions of the CBA.‘
B. Procedural Facts and History
In October 1990, Roberts filed a three-count complaint in the
Wayne County Circuit Court. Count I, entitled "Worker's
Compensation Discrimination-- MCLA 418.301(11),"
incorporated by reference certain general allegations and then
alleged:
25. Defendants' [sic] terminated Plaintiff [sic] employment as
a result of her assertion of a work-related medical condition.
26. In the alternative, Defendant Mazda's policy of terminating
all persons who remain off work greater than 52 weeks is
intended to discriminate against persons who allege
work-related injuries.
27. In the alternative, Defendants discriminated against
Plaintiff by failing or refusing to offer her work within her
restrictions, whereas other persons without a work-related
condition were accommodated at the plant.
Count II ("Handicap Discrimination") alleged that Mazda
discriminated against Roberts because of her physical handicap
* The union and Mazda had entered into a new three-year CBA
before the expiration of the old CBA, and this had the effect of extending
Roberts's "inactive" status until this termination occurred in
November 1991.
App. 5.5
in violation of the Michigan Handicappers' Civil Rights Act.
Count III ("Handicap Discrimination--Federal Rehabilitation
Act of 1973") alleged that Mazda's refusal to accommodate
Roberts's handicap violated federal law.
In November 1990, Defendant Mazda removed Roberts's suit
to federal court based on federal question jurisdiction. In
December 1990, Roberts moved to have the case remanded to
state court arguing only that the federal court had no
jurisdiction over the workers' compensation discrimination
claim (count I). This motion was denied on February 21, 1991.
On March 4, 1991, Roberts moved to dismiss voluntarily
counts II and III of her complaint. On March 21, Mazda filed
a motion to dismiss or for summary judgment, contending,
among other things, that count I was preempted by the Labor
Management Relations Act of 1947, 29 U.S.C. § 185 (LMRA
§ 301).
On July 11, the court ruled on both parties' March 1991
motions. It wrote:
Count I plainly invites the court to interpret the CBA by
finding that Mazda's practice of terminating workers who are
absent for 52 consecutive weeks-a policy that is set out in the
CBA at Article VII, § 5.1--discriminates against persons with
work-related injuries. Plaintiffreinforced this stance when she
testified in deposition that she presumed her termination related
to a contract interpretation dispute between Mazda and her
union. While plaintiff opposes defendants' motion with
arguments that she was a victim of discrimination by her
supervisor while she worked in the Mazda plant, there is no
escaping that plaintiff has challenged the discriminatory
policies of the CBA on the face of her complaint. Although the
court could analyze the allegations of discrimination by the
App. 5.6
supervisor without resorting to the CBA, the court must
interpret the CBA to reach the accusations of the complaint.
**3 (footnote omitted.) The district court then ruled that
count I was preempted by LMRA § 301 because it required
interpretation of the CBA and ordered Mazda to supplement its
motion for dismissal or summary judgment with a brief on why
count I failed to stated a claim under § 301. Finally, the court
denied without prejudice Roberts's request for voluntary
dismissal of counts II and II:
Because the court finds in this order and opinion that the
doctrine of federal preemption prohibits the remand of count I
to the Michigan Circuit Court, plaintiff may be prejudiced by
the granting of her motion to dismiss counts II and II. The
court, therefore, will deny that motion without prejudice.
On August 7, as part of her response to Mazda's brief on the
issue of whether Roberts's complaint stated a claim under
§ 301, Roberts moved to delete’ paragraph 26 from her
complaint. On August 21, Roberts moved to amend her
complaint by substituting the following language for
paragraph 26: "Defendant discriminated against Plaintiff by
harassing her, giving her job assignments in violation of her
restrictions after reporting her work-related injuries." On
November 25, 1991, Roberts moved to amend her complaint to
add a claim based on Mazda's alleged failure to notify her
* Roberts asked the court to “dismiss paragraph 26 of Count I."
For clarity, we refer to this particular motion as the "motion to delete."
App. 5.7
properly of her termination.° Mazda opposed each of these
motions.
On March 26, 1992, the district court issued two decisions. In
one of these, the district court denied the two motions to amend
(filed August 21 and November 25). After setting out the
applicable law, the court analyzed the first motion to amend in
one paragraph:
In the present case, in her first motion to amend the complaint,
plaintiff is seeking to substitute different language in
paragraph 26 of the original complaint and effectively remove
any reference to a termination policy in the collective
bargaining agreement under which plaintiff worked. This
request comes after the court has ruled that count I is
preempted by § 301 of the Labor Management Relations Act,
29 U.S.C. 185, and after plaintiff has filed motions to
voluntarily dismiss counts II and IT . . . and dismiss
paragraph 26 completely. It appears to the court that plaintiff's
first motion to amend is made with a dilatory motive to remove
all vestiges of a federal question from the complaint.
Additionally, at this late stage in the proceedings, allowing an
amendment would cause undue delay as well as be prejudicial
to defendant, because it would require further discovery and
incur additional expense. These factors persuade the court that
plaintiff's first motion to amend the complaint should be
denied. ...
° Roberts claimed that the termination letter sent November 8,
1991 did not provide sufficient warning that her failure to return to work
within five working days of the termination of her long-term disability
benefits (on November 1, 1991) would result in her termination.
i
ii a Bi PW cana Rta ats esd se ede ah Roald Tae as
App. 5.8
Roberts's second motion to amend was also denied. The
district court reasoned that amendment would cause undue
delay and "simply add another allegation subject to § 301
preemption which, under the facts of this case, [might] not
survive a motion to dismiss."
In its second opinion of March 26, the court granted Mazda's
motion for summary judgment, holding that Roberts's facts
could not sustain a § 301 claim. The district court denied
without discussion Roberts's motion to delete paragraph 26
from her complaint.’
II
**4 We are asked to review the district court's decisions
granting Mazda's motions for dismissal or summary judgment
on counts I, II, and I] and denying Roberts's motions to amend
her complaint and to delete paragraph 26. While we ultimately
resolve this case on grounds that the district court abused its
discretion in refusing to permit Roberts to modify her
complaint, the interconnectedness of the preemption issue and
Roberts's requests to modify her complaint requires that we
first address the preemption issue.
” Apparently, the court felt that either its discussion of the
summary judgment granted on count I or its ruling on the two separate
motions to amend was a sufficient basis to deny the motion to delete. We
address this issue infra.
* We also review the district court's order of July 11 (which held
that count I was preempted by LMRA § 301) despite the fact that it was not
specifically mentioned in the notice of appeal. We do this because the.
July 11 order was an integral part of the district court's ultimate summary
disposition of the case.
App. 5.9
A. Preemption by § 301
Mazda's motion was a motion to dismiss, or, in the alternative,
a motion for summary judgment. The district court treated the
motion as one for summary judgment, so this court reviews the
district court judgment de novo. Adkins v. United Mine
Workers, 941 F.2d 392, 399 (6th Cir.1991), cert. denied,
112 S. Ct. 1180 (1992).
The district court relied primarily on the face of Roberts's
complaint, emphasizing particularly paragraph 26, in granting
Mazda's motion for summary judgment. However, one
additional fact was used by the district court to support its
finding of preemption:° the deposition testimony of Roberts in
which, according to Mazda, she "admits" that her claim is
governed by the CBA. We first dispose of this argument.
Summarizing Roberts's testimony and giving to Mazda the
benefit of the doubt as to its meaning, we find that Roberts
testified that she understood that (1) her employment was
governed by the CBA, and (2) Roberts's union grieved her
discharge on grounds that the CBA should not be interpreted in
the way in which Mazda was interpreting it. Mazda then
argued in the district court and before us that preemption was
mandated because Roberts "admitted" that her employment was
governed by the CBA and that her termination turned on the
meaning of the CBA. The district court apparently agreed with
this argument,'° but we donot. What Roberts understood to be
* The district court's mention of this fact is found in the July 1991
ruling which was essentially the first of two parts in the summary judgment
ruling.
‘0 We note, however, that this point was not the primary basis of
(continued...)
App. 5.10
the union's basis for grieving her termination has little, if
anything, to do with whether the claim of discrimination she
raises in this lawsuit is governed by the CBA. What matters is
whether her legal theory of this case requires interpretation of
the CBA. Her statements at the deposition cannot be stretched
as far as Mazda would like them to go."
We turn now to the preemption issue. Without engaging in an
extended discussion of the cases developing the doctrine of
§ 301 preemption,’? we identify the issue in this case as
whether Roberts's suit is sufficiently "independent" of the CBA
to withstand the preemptive force of § 301. The controlling
precedents on this issue are Lingle v. Norge Div. of Magic
Chef, Inc., 486 U.S. 399 (1988) and Smolarek v. Chrysler
Corp., 879 F.2d 1326 (6th Cir.) (en banc), cert. denied,
493 U.S. 992 (1989).
In Lingle, the plaintiff was injured, allegedly at work, and filed
a workers’ compensation claim. Her employer did not believe
that she was injured at work and fired Lingle for filing a false
workers' compensation claim. The union grieved the discharge,
objecting that Lingle was not fired for "just" or "proper" cause
'° (...continued)
the district court's ruling.
'! We also note that matters which can be "admitted" by a party are
generally limited to matters of fact and some mixed questions of fact and
law. See 8 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 2255 (1970). It cannot seriously be contended that a party's
understanding of a legal matter could constitute a binding admission. It is
for the court in all instances to decide what law applies to a particular case.
'? For a discussion of the history and development of § 301
preemption, see International Bhd. of Elec. Workers v. Hechler, 481 U.S.
851, 855-859 (1987).
App. 5.11
as the CBA required. At the same time, Lingle filed an action
in state court alleging she had been discharged for exercising
her rights under the state workers’ compensation laws. Both the
district court and the Seventh Circuit (en banc) held that
Lingle's claim was preempted.
**5 The Supreme Court reversed. After reviewing its prior
§ 301 preemption decisions, the Court wrote:
"[To] show retaliatory discharge, the plaintiff must set forth
sufficient facts from which it can be inferred that (1) he was
discharged or threatened with discharge and (2) the employer's
motive in discharging or threatening to discharge him was to
deter him from exercising his nghts under the Act or to
interfere with his exercise of those rights." [citations to state
case law omitted] Each of these purely factual questions
pertains to the conduct of the employee and the conduct and
motivation of the employer. Neither of the elements requires
a court to interpret any term of a collective-bargaining
agreement. To defend against a retaliatory discharge claim, an
employer must show that it had a nonretaliatory reason for the
discharge; this purely factual inquiry likewise does not turn on
the meaning of any provision of a collective-bargaining
agreement. Thus, the state-law remedy in this case is
"independent" of the collective-bargaining agreement in the
sense of "independent" that matters for § 301 pre-emption
purposes: resolution of the state-law claim does not require
construing the collective-bargaining agreement.
Lingle, 486 U.S. at 407 (emphasis added) (citations omitted).
The Court rejected the Seventh Circuit's view that the claim
was preempted because analyzing the discharge under the CBA
or under state tort law involved deciding the same factual
issues.
App. 5.12
In a post-Lingle decision, this Court, sitting en banc, held that
a workers’ compensation discrimination/retaliatory discharge
claim was not preempted by § 301. Smolarek, 879 F.2d at
1331. This Court cited Lingle throughout its decision and
concluded that the claim was “sufficiently set out as separate
and apart from a collective bargaining contract claim, and thus
avoid[ed] preemption." 879 F.2d at 1331; cf. Dougherty v.
Parsec, Inc., 872 F.2d 766 (6th Cir. 1989) (tortious interference
with contract/business relationship claim not preempted by
§ 301 because there was no need to interpret the contract (the
CBA) in order to find that another had tortiously interfered
with it).
In light of Lingle, and given the way Roberts drafted her
complaint, the question before the district court in the instant
case was easy. Paragraph 26 alleges that the provisions of the
CBA are discriminatory. This allegation makes Roberts's claim
dependent on the CBA because the district court would have to
interpret the CBA to reach plaintiffs claim. And, "if the
resolution of a state-law claim depends upon the meaning of a
collective-bargaining agreement, the application of state law
. .. 18 pre-empted and federal labor-law principles--necessarily
uniform throughout the Nation--must be employed to resolve
the dispute." Lingle, 486 U.S. at 405-06 (footnotes omitted).
However, if we assume for purposes of analysis that
paragraph 26 had been deleted from the complaint, an entirely
different outcome results. Paragraph 25 ("Defendants' [sic]
terminated Plaintiff [sic] employment as a result of her
assertion of a work-related medical condition") is not
preempted, because, in order to adjudicate this Claim, the court
need only look to the facts of the situation and need not
interpret the CBA. See Lingle, 486 U.S. at 407 (common law
tort claim for retaliatory discharge not preempted); Smolarek,
App. 5.13
879 F.2d at 1331 (workers' compensation
discrimination/retaliatory discharge claim under Michigan
statute not preempted); cf. Baldracchi v. Pratt & Whitney
Aircraft Div., United Technologies Corp., 814 F.2d 102
(2d Cir. 1987) (allegation that defendant violated Connecticut
statute by terminating plaintiff for filing a workers'
compensation claim held not preempted), cert. denied, 486 U.S.
1054 (1988).
**6 Paragraph 27 alleges that "Defendants discriminated
against Plaintiff by failing or refusing to offer her work within
her restrictions, whereas other persons without a work-related
condition were accommodated at the plant." Roberts's legal
theory here is one of discrimination, and paragraph 27 would
require the court to consider only factual issues--how Mazda
treated employees who asserted work-related injuries compared
to how it treated those with non- work-related injuries. It
would not require interpretation of the CBA and thus would not
be preempted. Since neither paragraph 25 nor 27 requires
preemption, count I would not be preempted in the absence of
paragraph 26.
Therefore, whether Roberts's claim is preempted depends
entirely upon whether paragraph 26 is present in or absent from
the complaint. We tum now to consideration of the district
court's refusal to permit Roberts to delete paragraph 26 or
amend her complaint.
B. Legal Standards for Permitting
Amendment of Pleadings
The question of whether a party should be allowed to amend a
pleading is left to the discretion of the district court and the
district court may only be reversed if it abused its discretion.
App. 5.14
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,
330-31 (1971); United States v. Wood, 877 F.2d 453, 456
(6th Cir. 1989).
Federal Rule of Civil Procedure 15(a) provides that leave to
amend a pleading should be “freely given when justice so
requires."
If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits. In the
absence of any apparent or declared reason—such as undue
delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the Opposing party by virtue of
allowance of the amendment, futility of amendment, etc.—the
leave sought should, as the rules require, be "freely given."
Forman v. Davis, 371 U.S. 178, 182 (1962). "[D]elay alone,
regardless of its length is not enough to bar [amendment] if the
other party is not prejudiced." Moore v. City of Paducah,
790 F.2d 557, 560 (6th Cir. 1986) (quoting 3 James W. Moore,
Federal Practice 15.08 at 15.76). And, if the court can
impose conditions upon leave to amend in order to mitigate the
prejudice to the non-moving party, it could be an abuse of
discretion to deny the motion outright. See 6 Charles A.
Wright, et al., Federal Practice and Procedure § 1486 at 605-06
(1990) ("If the party opposing amendment can be protected by
the use of conditions from any possible prejudice that might
result from the untimeliness of the amendment, there is no
justifiable reason for not allowing it").
App. 5.15
C. Analysis of the District Court's Rationale
1. Motion to delete
We first address Roberts's motion to delete paragraph 26.'°
Although the district court did not discuss why it denied
Roberts's motion to delete, several reasons for the denial can be
gleaned from the district court's decisions: undue delay,
prejudice to Mazda, dilatory motive, and futility of amendment.
**7 For the reasons stated in our discussion of the preemption
issue above, we find that the district court's belief that deleting
paragraph 26 would be futile was erroneous. The district
court's remaining reasons were contained in its rulings on the
later motions to amend, and we consider those reasons as they
would apply to the motion to delete.
The primary reason for denying the August 21 motion to
amend was that the court found Roberts had "a dilatory motive
to remove all vestiges of a federal question from the
complaint." Secondary reasons were undue delay and prejudice
to Mazda "because [permitting amendment] would require
further discovery and incur additional expense."
We hold that none of these reasons suffices to justify the denial
of the motion to delete. First, while Roberts unquestionably
wanted to be in state court rather than federal court, the mere
fact that she attempted to clarify her state law claim by moving
‘3 We nove that Roberts's approach here should be discouraged:
burying in a response brief a motion to dismiss a paragraph from one's
complaint is hardly a commendable practice. The motion not only might
be missed completely, but also fails to give the district court a focused legal
and factual basis upon which to consider it.
App. 5.16
to delete paragraph 26 after she became aware of the
preemption problem is not cause to find that she acted
improperly."* At oral argument, counsel for Mazda cited
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988), for the
Proposition that courts should guard against plaintiffs' deleting
federal claims so they can get back into state court. Cohill does
not so hold; on the contrary, Cohill held that "a district court
has discretion to remand to state court a removed case
involving pendent claims upon a proper determination that
retaining jurisdiction over the case would be inappropriate."
Cohill, 484 U.S. at 357. While acknowledging that forum
manipulation concems were legitimate, the Court specifically
rejected Camegie-Mellon's argument that “giving district courts
discretion to remand cases involving pendent state-law claims
[would] allow plaintiffs to secure a state forum through the use
of manipulative tactics." Jd. The Court stated that an attempt
to manipulate the forum was simply one factor to be considered
in the district court's decision whether to retain or remand a
pendent state-law claim after dismissal of the basis for federal
jurisdiction. Jd.
Obviously, Roberts would have been wiser to plead so that her
case could not have been removed in the first place. But, even
if she attempted to amend solely to avoid federal question
jurisdiction, the district court's remedy is not to prohibit
'* See, e.g., Minor v. Northville Pub. Sch., 605 F.Supp. 1185, 1201
(E.D.Mich. 1985) ("[F}iling a motion for leave to amend after prompting by
Opposing counsel's motion for dismissal is not bad faith as intimated by the
defendant here.") (citing Hildebrand vy. Honeywell, Inc., 622 F.2d 179
(Sth Cir.1980)); Adams v. Beland Realty Corp., 187 F. Supp. 680
(E.D.N.Y.1960) (after removal based on diversity, plaintiff's motion to
Substitute for corporate defendant defendant's Successor partnership, a
non-diverse party, held proper because no prejudice shown; case then
remanded to state court for lack of jurisdiction).
App. 5.17
amendment, but to retain jurisdiction of the state law claim
after amendment.'> We do not believe that federal jurisdiction
is aquicksand in which, plaintiff having haplessly wandered in,
she remains trapped because of the district court's refusal to
permit escape. Likewise, we do not believe that such a plaintiff
who appears to be pursuing a particular cause of action is
precluded from modifying her pleadings so as to express a
different cause of action, if the new theory fits with the facts of
her case."®
Second, delay and prejudice to defendant were at a minimum
in this case. Permitting Roberts to change her complaint by
deleting a paragraph is quite different from permitting a
plaintiff to add a claim which raises new theories or alleges
new facts, which necessitates further discovery. Permitting
deletion is: tis case would conceivably cause a slight delay and
prompt a new round of summary judgment motions. This
minimal effect cannot justify the district court's refusal to
permit the deletion in light of Rule 15(a), which requires that
leave to amend be "freely given."
'S Tt is settled law that the district court may exercise jurisdiction
over a pendent state law claim, even after the basis for removal to federal
court has been eliminated, if recommended by a careful consideration of
factors such as judicial economy, convenience, fairness, and comity. See
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988); United Mine
Workers v. Gibbs, 383 U.S. 715 (1966).
16 We reiterate, however, that we do not approve of Roberts's
counsel's approach in this case. On the contrary, the poor drafting of the
complaint in this case caused the problem in the first place, and many
months passed before any attempt was made to correct patent problems with
the complaint. But, we are bound to follow the applicable principles of law,
even if doing so creates the appearance that we approve of counsel's
handling of the matter.
App. 5.18
**8 Although one might believe that for efficiency's sake we
should affirm the summary judgment entered in Mazda's favor
based on the unlikelihood that Roberts will ultimately prevail
in this case, we do not find that such an approach would be
proper when the remaining state law claim is at least legally
cognizable. Of the two primary paragraphs that remain in
count I (paragraphs 25 and 27), paragraph 25 may state a cause
of action under Michigan law. Mich.Comp.Laws Ann.
§ 418.301(11) (1991) (Mich.Stat.Ann. § 17.237(301)(11))
provides:
A person shall not discharge an employee or in any manner
discriminate against an employee because the employee filed
a complaint or instituted or caused to be instituted a proceeding
under or because of the exercise by the employee on behalf of
himself or herself or others of a right afforded by this act.
If Roberts can show that she was terminated because she filed
a workers' compensation claim as it anpears that paragraph 25
alleges, she can state a claim under this statute.
Accordingly, we find that the district court abused its discretion
in refusing to permit the deletion of paragraph 26.
2. First motion to amend
With regard to the August 21 motion to amend, we affirm the
denial of that motion on other grounds. The district court has
no duty to permit amendments which would fail to state a claim
and thus be futile. We find that permitting Roberts to add the
language she requested, "Defendant discriminated against
Plaintiff by harassing her, giving her job assignments in
violation of her restrictions after reporting her work-related
App. 5.19
injuries," would be futile because the new language does not
state a valid claim under section 418.301.
With this new language, Robert alleged that she was
discriminated against for her assertion of a work related injury.
The problem here is that the alleged harassment and the giving
of work in violation of her medical restrictions occurred before
she filed a workers' compensation claim. Section 418.301(11)
does not recognize a cause of action for discrimination that
occurs prior to the filing of a workers' compensation claim. See
Griffey v. Prestige Stamping, Inc., 473 N.W.2d 790
(Mich.App.1991); Ashworth v. Jefferson Screw Prods., Inc.,
440 N.W.2d 101 (Mich.App.1989), leave denied, 433 Mich.
873 (1989); Wilson v. Acacia Park Cemetery Ass'n,
413 N.W.2d79 (Mich.App. 1987). Because this first motion to
amend would have added an allegation that did not state a
claim, we affirm the district court's denial of it.
3. Second motion to amend
The November 25 motion to amend sought to add a new claim
arising out of a new occurrence, i.e., the allegedly improper
notice of termination. Delay would be significant with this
amendment because of the new allegation it made. Further
discovery would have to be conducted. And, it appears that
adding this particular claim would be futile because the notice
requirements are either spelled out in the CBA, in which case
the claim is probably preempted, or are non-existent, in which
case the claim is likely meritless. Because of these facts, we
cannot say that the district court abused its discretion, and we
affirm the denial of the second mc*on to amend.
App. 5.20
D. Other Issues
**9 We address only briefly the district court's summary
judgment on counts II and III. Roberts does not contest the
dismissal of count II, and finding solid ground for the
dismissal, we affirm the district court's ruling on that issue. We
also affirm the dismissal of count II because Roberts only
feebly contests its dismissal, and we find sufficient grounds for
affirmance.!”
I
For the foregoing reasons, we AFFIRM the district court's
dismissal of counts II and III, the denial of the August 21
motion to amend, and the denial of the November 25 motion to
amend. We REVERSE the denial of Roberts's motion to delete
paragraph 26 and the summary judgment entered on count I of
the complaint, and we REMAND for further proceedings
consistent with this opinion.
'7 We also note that at the district court Roberts had consented to
the dismissal of count II if count I survived Mazda's preemption argument.
Since we reverse the district court's summary judgment on count I because
that count is not preempted, we find that Roberts has no bona fide objection
to our affirmance of the dismissal of count II.
App. 6.1
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions
Without Reported Opinions" appearing in the Federal Reporter.
~ Use FICTA9 Rule 36-3 for rules regarding the publication and
citation of unpublished opinions.)
United States Court of Appeals, Ninth Circuit.
Leon SANDERS, Plaintiff-Appellant,
V.
HUGHES AIRCRAFT CO., Defendant-Appellee.
No. 93-56378.
Submitted May 24, 1994.!
Decided May 27, 1994.
Appeal from the United States District Court for the Central
District of California, No. CV-93-02426-RJK; Robert J.
Kelleher, District Judge, Presiding.
C.D.Cal.
AFFIRMED.
Before: HUG, D.W. NELSON, and FERNANDEZ, Circuit
Judges.
' The panel unanimously finds this case suitable for decision
without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. We therefore
deny the parties’ request for oral argument.
App. 6.2
MEMORANDUM?
**1 Leon Sanders appeals pro se the district court's dismissal
of his action for breach of contract and wrongful termination.
The court dismissed the action pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief may be granted. We have jurisdiction pursuant to
28 U.S.C. § 1291. We review de novo, see California Elec.
Co. v. Briley, 939 F.2d 790, 792 (9th Cir.1991), cert. denied,
112 S. Ct. 1478 (1992), and affirm.
I
Breach of Contract
In support of his claim for breach of contract, Sanders alleged
that defendant Hughes Aircraft Company ("Hughes") violated
the collective bargaining agreement between Hughes and
Sanders's union. As the district court correctly held, Sanders's
breach of contract claim is preempted by section 301 of the
Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185.
See Milne Employees' Ass'n v. Sun Carriers, Inc., 960 F.2d
1401, 1408 (9th Cir.1991), cert. denied, 113 S. Ct. 2927 (1993)
(state-law claim preempted by section 301 of LMRA if claim
requires interpretation of collective bargaining agreement).
While Sanders correctly argues that the LMRA does not
preempt a state claim for retaliatory termination based on an
employee's filing for workers' compensation benefits, see
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 406-07
* This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by
9th Cir.R. 36-3.
App. 6.3
(1988), that argument is irrelevant to the question of whether
the LMRA preempts Sanders's breach of contract claim.’
The district court also correctly held that Sanders's claim is
barred by the six-month statute of limitations applicable to
claims against an employer for breach of a collective
bargaining agreement. See DelCostello v. International Bhd.
of Teamsters, 462 U.S. 151, 155 (1983) (six-month statute of
limitations contained in section 10(b) of National Labor
Relations Act applicable to LMRA claims). The union
informed Sanders by the end of September 1992 that it would
not pursue his grievance against Hughes. The statute of
limitations began running at that time because Sanders then
knew or should have known that the union had stopped
pursuing his grievance. See Harris v. Alumax Mill Prods., Inc.,
897 F.2d 400, 404 (9th Cir.) (holding that limitations period
began running when union informed employee that union
would not pursue grievance), cert. denied, 498 U.S. 835 (1990);
Carter v. Smith Food King, 765 F.2d 916, 919 n. 2
(9th Cir.1985) (statute of limitations for section 301 actions
begins running when employee knows or has reason to know
union has quit pursuing grievance). Sanders did not file his
complaint until April 27, 1993, almost a month after the statute
of limitations expired. Therefore, his claim is time-barred.
Sanders's contention that he was unsure whether the union
would pursue his grievance is belied by the unambiguous
language of the union's September 23, 1992 letter which states,
in pertinent part, that "the motion was made and concurred with
> Moreover, as discussed in part Il, infra, Sanders's retaliatory
termination claim is barred under Cal. Labor Code § 132(a).
App. 6.4
not to pursue this grievance any further." Moreover, the fact
that Sanders's other grievances may not yet be settled does not
Support Sanders's contention because Sanders filed those
grievances after the district court announced it was dismissing
this action.*
**2 In sum, the district court did not err by holding that
section 301 of the LMRA preempts Sanders's breach of
contract claim and that, as such, his claim is barred by the
statute of limitations.®
II
Retaliatory Termination
Sanders's complaint indicated that this claim was in part based
on alleged violations of the collective bargaining agreement by
Hughes. To that extent, Sanders's claim is preempted by
“Normally, in reviewing a dismissal for failure to state a claim we
confine our review to the contents of the complaint. Sanders attached the
union's letter to his complaint, however. Therefore, we properly may
consider it on appeal. See Holden v. Hagopian, 978 F.2d 1115, 1118
(9th Cir. 1992) (court may consider complaint and all materials properly
attached thereto).
* To the extent Sanders is complaining about these later grievances,
Sanders has not alleged nor is there any evidence that he has exhausted his
contractual grievance procedures. See Carr v. Pacific Maritime Ass'n,
904 F.2d 1313, 1317 (9th Cir. 1990), cert. denied, 498 U.S. 1084 (1991).
* Although not raised on appeal, Sanders argued in district court
that the statute of limitations was tolled when he filed an unfair labor
practice charge with the National Labor Relations Board. This argument
lacks merit. See Conley v. International Bhd. of Elec. Workers, Local 639,
$10 F.2d 913, 915 (9th Cir. 1987).
App. 6.5
section 301 of the LMRA and barred by the statute of
limitations. See supra, part I.
In his complaint, Sanders alleged that Hughes terminated him
in retaliation for his filing of a workers' compensation claim.
In California, the exclusive remedy for an employee who
alleges such a retaliatory termination is to file a petition with
the Workers' Compensation Appeals Board ("WCAB").’
Cal.Labor Code § 132(a); Portillo v. G.T. Price Prods., Inc.,
182 Cal.Rptr. 291, 292-94 (Cal.Ct.App.1982); see also
Taylor v. St. Regis Paper Co., 560 F.Supp. 546, 549
(C.D.Cal.1983). Therefore, the district court correctly
dismissed Sanders's retaliatory termination claim.*
II
Other Contentions on Appeal
On appeal, Sanders contends the district court should have
entered a default judgment against Hughes. This contention
lacks merit. There is no indication in the record that Sanders
requested entry of default against Hughes. Moreover, the
record shows that Hughes timely filed its motion to dismiss.
See Fed.R.Civ.P. 12 & 55(a). Thus, Sanders would not have
been entitled to a default judgment.
7 In fact, the record shows that Sanders filed a petition with the
WCAB.
® Sanders's reliance on Ortiz v. Bank of Am. Nat'l Trust & Sav.
Ass'n, 852 F.2d 383 (9th Cir. 1988) is misplaced. Ortiz did not involve the -
issue of whether Cal.Labor Code § 132(a) provides the exclusive remedy
for the type of retaliatory termmation claim Sanders alleged. Moreover,
Sanders's contractual claims in this case are barred by the LMRA and not
by a workers’ compensation settlement, as was the case in Ortiz. See 852
F.2d at 387-88.
App. 6.6
Sanders also contends that the district court committed judicial
misconduct and that he has filed a complaint against the district
court judge. Again, Sanders never asked the district court
judge to recuse himself. In addition, Sanders's dispute with the
judge appears to be based solely on adverse rulings by the
judge. This is not enough to support a finding that the judge
was biased against Sanders. See Taylor v. Regents of Univ. of
Cal., 993 F.2d 710, 712 (9th Cir. 1993) (per curiam), cert.
denied, 114 S. Ct. 890 (1994).
AFFIRMED.
App. 7.1
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions
Without Reported Opinions" appearing in the Federal Reporter.
Use FI CTA1 Rule 36.1 and FI CTA1 Rule 36.2 for rules
regarding the publication and citation of unpublished opinions. )
United States Court of Appeals,
First Circuit.
Leanders H. SMITH, Plaintiff, Appellant,
V.
WGBH EDUCATIONAL FOUNDATION,
INC., Defendant, Appellee.
No. 93-1213.
September 27, 1993
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Leanders H. Smith on brief pro se.
Alan D. Rose, Diane G. Rosse, Marilee Denelle and Nutter,
McClennen & Fish on brief for appellee.
D.Mass.
AFFIRMED.
Before Breyer, Chief Judge, Selya and Boudin, Circuit Judges.
Per Curiam.
App. 7.2
**1 Leanders H. Smith sued WGBH Educational Foundation,
Inc. (WGBH) in state court, alleging that it had violated his
rights under Massachusetts’ workers' compensation laws,
M.G.L. ch. 152, §§ 75A, 75B, when it refused his request to
retum to work after being on a disability leave during which he
had received compensation benefits. WGBH removed Smith's
action to federal district court, and moved for summary
judgment, which the district court granted. Smith is appealing
that order as well as orders denying motions that the court
disqualify itself from hearing Smith's case, remand his case to
the state court, and permit certain depositions to proceed. We
affirm for the reasons stated in the district court's orders, and
elaborate only as necessary to clarify the court's briefly stated
reasons.
1. Removal/Preemption. In Magerer v. John Sexton & Co.,
912 F.2d 525 (1st Cir. 1990), we held that a retaliatory
discharge claim brought under M.G.L. ch. 152, § 75B, was
completely preempted under section 301 of the Labor
Management Relations Act, 29 U.S.C. § 185(a), where the
plaintiff was subject toa collective bargaining agreement which
contained a management rights clause giving the
employer/defendant the right to "discharge employees for
proper cause." Since the definition of “proper cause" under the
agreement could permit employer discharges not permitted
under section 75B, we found that the rights and obligations of
Magerer and his employer were controlled by the contractual
provisions governing discharge and not by any independent
State standard found in the workers' compensation laws of
Massachusetts. Jd. at 530. In so doing, we relied on the
specific language in section 75B, which provided that, if the
rights granted employees under that section were inconsistent
with a collective bargaining agreement, the agreement was to
prevail. The collective bargaining agreement between WGBH
App. 7.3
and the National Association of Broadcast Employees and
Technicians (NABET) contains essentially the same clause as
the one we considered in Magerer. Article XIX of the
agreement provides that "[t]he right to discipline and discharge
employees for just cause shall remain the prerogative of
[WGBH]." Thus, under Magerer, Smith's section 75B claim
requires interpretation of the collective bargaining agreement
and for that reason it is completely preempted under
section 301 of the Labor Management Relations Act. Jd.
The district court's conclusion that Smith's state law claims
were preempted was also correct with respect to Smith's claim
under section 75A. Like section 75B, section 75A states that
an applicable collective bargaining agreement which is
inconsistent with the rights granted in section 75A is to prevail
over section 75A. Section 75A grants a preference in hiring to
any former employee who has lost a job due to a compensable
injury under workers' compensation over other applicants not
employed at the time when such former employee seeks to be
rehired. As a general matter, Article 13.1 of WGBH's
collective bargaining agreement gives WGBH "the sole and
exclusive right to make all decisions regarding the
management, operation and programming of [its] operations,
including determination of the number of employees covered
by this Agreement," suggesting that WGBH may hire or not
hire employees as it sees fit and that it is not required to grant
any preference to former employees who have lost their
employment due to injuries compensable under Massachusetts’
workers' compensation law. More specifically, Article 17.3 of
the agreement requires WGBH to rehire laid-off employees
according to seniority. For certain types of available work,
moreover, Article 3.7(a) also states ahiring preference based on
seniority for regular staff employees who have been laid off.
The seniority principle for rehiring laid-off employees is
App. 7.4
inconsistent with section 75A's hiring preference for employees
laid off or discharged because of injuries compensable under
Massachusetts' workers' compensation law. Thus, under the
reasoning of Magerer, Smith's section 75A claim requires
interpretation of the collective bargaining agreement and for
that reason it, too, is completely preempted.
**2 Since Smith's claim is completely preempted under
section 301, it states a federal claim and thus arises under
federal law, Caterpillar, Inc. v. Williams, 482 U.S. 386, 393
(1987); Avco Corp. v. Aero Lodge No. 735, 390U:S. 557, 560
(1968); Magerer, 912 F.2d at 528, and not under Massachusetts
law. Consequently, 28 U.S.C. § 1445(c), which prohibits the
removal to federal court of claims arising under a state
workmen's compensation law, does not apply, and removal of
the claim here was proper. See Vantine v. Elkhart Brass
Manufacturing Co., 762 F.2d 511, 517-18 (7th Cir. 1985)
(section 1445(c) did not bar removal of a claim brought under
a state's workmen's compensation laws; under the state's laws,
the cause of action arose under the collective bargaining
agreement and thus stated a federal claim under section 30]
~ which rendered removal to the district court proper); Smith v.
Union Carbide Corporation, 664 F. Supp. 290, 292
(E.D. Tenn. 1987) (section 1445(c) did not bar removal of an
action brought under a state's workmen's compensation law
because the plaintiff's suit was an independent, judicially
created tort action, and so did not arise under the State's
workmen's compensation laws, and because it was preempted
by federal labor law and therefore arose under federal and not
state law).
2. Smith's Employment Status as of August 1989. If Smith
was subject to WGBH's collective bargaining agreement,
dismissal of his suit was proper since his only remedy for his
App. 7.5
discharge was resort tothe grievance and arbitration procedures
of that agreement. See Allis-Chalmers Corporation v. Lueck,
471 U.S. 202, 220-21 (1985). In affidavits, Smith claimed that
his employment at WGBH had ended before August 1989 and
that he was not subject to the WGBH-NABET collective
bargaining agreement. Accordingly, he argues that he was not
bound by a 1990 arbitral decision which found that WGBH had
’ discharged him for just cause, and he says that he is free to sue
in court. In view of the overwhelming evidence to the contrary,
we find that his allegations do not establish the existence of a
genuine issue of material fact sufficient to defeat WGBH's
motion for summary judgment. Petitti v. New England
Telephone & Telegraph Co., 909 F.2d 28, 30 (1st Cir. 1990)
(summary judgment is proper if evidence is so one-sided that
one party must prevail as a matter of law).
Smith claims that his employment had terminated before
August 1989 under Article 17.2(f) of the collective bargaining
agreement. That article provided for loss of seniority by
employees absent from work due to injury for more than
15 months, and was understood by the parties to terminate the
employment of such employees. As of August 1989, Smith
had been on disability leave for more than 15 months, having
begun his leave in February 1986. In an affidavit, WGBH's
Human Resources Director, Michael Enwright, who negotiated
WGBH's 1987-90 contract with NABET, stated that WGBH
had accepted the union's demand during those negotiations that
Smith be excluded from the operation of Article 17.2(f).
Smith's disability leave began in 1986, when the 1984-87
contract was in effect, and Enwright stated in his affidavit that
that contract did not contain Article 17.2(f). Smith has not
introduced any affidavit by the union to the contrary, nor has he
denied Enwright's sworn statement that the 1984-87 contract
did not contain Article 17.2(f).
App. 7.6
**3 In an affidavit, Smith states that John Plausse, his direct
supervisor, had told him during his leave that he was not
subject to the collective bargaining agreement. Nevertheless,
the pleadings, affidavits and underlying documentary evidence
submitted by the parties show conclusively that, even if Plausse
had told Smith that he was not subject to the collective
bargaining agreement, Smith knew that his employment with
WGBBH had not been terminated before August 1989 and that
he continued to be subject to the collective bargaining
agreement. Among the many pieces of evidence, we highlight
only the following: Smith's complaint stating that on or about
November 22, 1989, WGBH had refused to allow him to
"return to work"; Smith's letter to WGBH on August 2, 1989,
notifying Enwright that Smith was changing his "return to
work" date from September 18, 1989, to September 1, 1989,
telling Enwright to let Plausse know of the change so that
Plausse could make necessary plans, asking Enwright whether
his vacation time had been adjusted and informing Enwright
that he would be taking the first two weeks of October off; the
arbitration transcript which reveals that the union arbitrated
Smith's November 22, 1989 discharge (for misconduct not at
issue here), that Smith was consulted about and approved
NABET's and WGBH's selection of an arbitrator, and that
Smith attended the arbitration on dates in 1989 and 1990 and
actively assisted the union in presenting evidence on his behalf;
and Smith's affidavit stating that he is still a member of
NABET, acritical admission since membership in the union is
a condition of employment under the collective bargaining
agreement. See Agreement Between NABET and WGBH
Educational Foundation, Inc. 1987-1990, Art. 3.1. Although
Smith argues that certain letters and documents show that he
was not an employee for any purpose under the collective
_ bargaining agreement during his leave, those letters and
documents show only that he was not classified as an "active"
App. 7.7
employee at that time and thus did not have the nghts granted
active employees under the agreement (e.g., vacation, sick
leave, and holiday benefits). The collective bargaining
agreement distinguishes clearly between the rights of active
employees and those of non-active employees on leave of
absence (see, e.g., id. Art. 9.5(c), 9.7; Art. XII); nowhere does
it suggest that non-active employees on leave are not in the
bargaining unit or not subject to the grievance and arbitration
provisions of the contract.
Smith's other claims are without merit for the reasons stated in
the orders being appealed.
Affirmed.
App. 8.1
-NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions
Without Reported Opinions" appearing in the Federal Reporter.
Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules
regarding the publication and citation of unpublished opinions. )
Patrick THORNTON, Plaintiff-Appellant,
v. :
DENNY'S INCORPORATED, Defendant-Appellee.
No. 92-1368.
United States Court of Appeals, Sixth Circuit.
April 29, 1993.
On Appeal from the United States District Court for the Eastern
District of Michigan, No. 91-10110, Cleland, J.
E.D.Mich.
AFFIRMED.
Before MARTIN and SILER, Circuit Judges, and COFFIN,
Senior Circuit Judge.'
PER CURIAM.
**1 Patrick Thornton appeals the district court's grant of
summary judgment for Denny's Inc. in this employment
' The Honorable Frank M. Coffin, Senior Circuit Judge for the
United States Court of Appeals for the First Circuit, sitting by designation.
App. 8.2
dispute. Thornton alleged age discrimination, constructive
discharge, retaliatory discharge for filing a workmen's
compensation claim, and breach of a just-cause employment
contract. For the following reasons, we affirm the district
court. ;
In May 1983, Patrick Thornton, then forty-eight years old,
applied for employment at Denny's, Inc. On his written
application, Thornton indicated that he was willing to relocate.
In June 1983, Thornton was hired by Denny's to be an assistant
manager. For the first three months of employment, Thornton
attended a manager-in-training program at the Twelve Mile &
Woodward restaurant in Berkley, Michigan. He also assisted
workers at three other Denny's restaurants in the area. After
successfully completing the training program, Thornton was
assigned to the only Denny's restaurant in Saginaw, Michigan.
Thornton was supervised by Daniel Hoffman, the restaurant
manager, and Michael Hartman, the district manager.
In 1988, Denny's management personnel changed in the area.
Art Boudakian became the district manager for the district that
contained the Saginaw restaurant. Hoffman resigned from his
position, and George Dempsey, who had been in the same
position as Thornton, was promoted to become the new
restaurant manager. Thorton had a difficult working
relationship with Dempsey, who initially gave Thornton a poor
performance review. Boudakian intervened and scheduled
another review, and Thornton met performance standards on
the second review.
In 1989, Thorton refused to sign two critical memos regarding
his work. The first memo discussed the occurrence of guests
walking out on his shift. Thorton refused to sign the memo
because he had brought the matter to his supervisor's attention.
App. 8.3
The second memo described a discrepancy on a deposit slip
filled out by Thornton. Thornton admitted that he had made a
mistake but had said that the problem had been corrected and
that there was no need to document it.
In April 1989, Thornton injured his back while moving stock
at Denny's. Thornton filed a workers' compensation claim and
remained on disability leave through June 12. Because Denny's
has a self-administered workers' compensation plan, Denny's
incurred the full charge for Thornton's injury.
On June 22, Thornton's supervisors notified him that he was
being transferred, without areduction in pay, from the Saginaw
location to a Denny's restaurant thirty miles away in Flint. The
transfer was to take effect on July 5. Thornton refused to sign
the transfer memo and reported to work in Saginaw on the
transfer date. Denny's did not permit Thornton to work in the
Saginaw restaurant that day, and Thornton went home. Robert
Clayton, Denny's Human Resources Manager, called Thornton
to discuss his objections. When Thomton mentioned travel
expenses, Clayton offered to relocate Thornton to Flint at the
company's expense or to compensate Thornton for travel
expenses from home to the Flint restaurant, but Thornton
refused these offers. At Thornton's request, Denny's also
looked into the possibility of transferring Thornton to Las
Vegas, Nevada or Wichita Falls, Texas. However, there were
no available positions in these locations.
**2 After Thorton refused to work in Flint, Clayton placed
him on vacation and told him that if he did not begin working
at the Flint restaurant by July 17, Denny's would terminate his
employment for refusal to work. Thornton did not return to
work at the Flint location, and Denny's ended his employment.
App. 8.4
On February 28, 1991, Thornton filed a complaint in the
Saginaw County Circuit Court in Michigan for wrongful
discharge. On April 12, Denny's removed the case from the
state court to the Michigan federal district court based on
diversity of citizenship. Thornton's claim is based upon age
discrimination, constructive discharge, retaliatory discharge for
filing a workmen's compensation claim, and breach of a
just-cause employment contract. Thornton's complaint seeks
damages for wrongful discharge. |
Upon proper motions, the district court granted summary
judgment to Denny's and dismissed the case. On
March 20, 1992, Thornton filed his notice of appeal.
Our first inquiry is whether the federal district court had
jurisdiction to hear the merits of Thornton's case. Thornton
contends that the district court lacked federal subject matter
jurisdiction to hear the case because it arises out of Michigan
workers' compensation law. Removal of state-law workers'
compensation cases is prohibited even if there is diversity of
citizenship. See 28 U.S.C. § 1445(c) ("a civil action in any
State court arising under the workmen's compensation laws of
such State may not be removed to any district court of the
United States"). However, we find that Thornton's claim does
not arise under the Michigan worker's compensation law,
Mich.Comp. Laws § 418.621 et seq. The worker's
compensation statute provides neither the mechanisms nor the
remedy for this type of suit. Consequently, the federal district
court properly retained jurisdiction in this case because there is
diversity of citizenship.
We now address the question of whether summary judgment
was proper in this case. We review a grant of summary
judgment de novo. Faughender v. City of North Olmsted,
App. 8.5
Ohio, 927 F.2d 909, 911 (6th Cir. 1991). Under
Fed.R.Civ.P. 56(c), summary judgment is proper if there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
Thornton contends that he has presented sufficient evidence to
suggest that he may have been terminated as a result of age
discrimination. Thornton alleges that Denny's discriminated
against him on the basis of age in violation of Michigan's
Elliott-Larsen Civil Rights Act, Mich.Stat.Ann. § 3.548 et seq.
The Elliott-Larsen Act does not permit an employer to
“discharge, or otherwise discriminate against an individual with
respect to employment, compensation, or a term... . of
employment because of . . . age." To establish a prima facie
case of age discrimination in violation of Michigan law, the
plaintiff must present evidence that (1) he was a member of the
protected class; (2) he was discharged; (3) he was qualified for
the position; and (4) he was replaced by a younger person.
Matras v. Amoco Oil Co., 424 Mich. 675, 385 N.W.2d 586,
589 (1986). In addition, the plaintiff must show that age was
the determining factor in the employer's decision to take action
against the plaintiff. Dubey v. Stroh Brewery Co.,
185 Mich.App. 561, 564-65, 462 N.W.2d 758, 759- 60 (1990).
**3 Thornton has failed to demonstrate a prima facie case of
age discrimination because he has failed to present sufficient
evidence of discriminatory motive to survive a motion for a
directed verdict, as required by Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). Thornton attempted to provide
statistical evidence to show that Denny's was motivated to take
action against him because of his age. The testimony that
Denny's forced Thornton, its only manager over age fifty, to
accept a forced transfer is of little value because such action
against one individual is to small a sample to have statistical
App. 8.6
value. In regard to his discharge, Thornton has presented no
evidence to show that Denny's reason for the termination was
even remotely based on age. The overwhelming evidence
shows that Denny's reason for firing Thornton was that
Thornton refused to go to work at the Denny's in Flint.
Thornton also contends that the transfer order constitutes
constructive discharge. To show constructive discharge,
plaintiff must present evidence that his working conditions
were so intolerable that a reasonable person in the same
situation would have felt compelled to resign. Held v. Gulf Oil
Co., 684 F.2d 427, 432 (6th Cir.1982). In this case, Thornton
admitted that there was little difference between the two
restaurants, and Thornton was to receive the same salary.
Therefore, the transfer was a lateral move, and Thornton failed
to provide any indication of intolerable working conditions at
either location. Consequently, he does not present evidence of
constructive discharge which meets the Celotex standard.
Thornton also contends that a genuine issue exists regarding
whether he was discharged in retaliation for filing a workers’
disability compensation claim. To establish a prima facie case
of retaliatory discharge, a plaintiff must demonstrate that
(1) the plaintiff engaged in protected activity; (2) the employer
knew of this; (3) the employer took an adverse employment
action against the plaintiff; and (4) there was a causal
connection between the protected activity and the adverse
employment action. Polk v. Yellow Freight Systems, Inc.,
876 F.2d 527, 531 (6th Cir.1989). It is undisputed that
Thornton engaged in protected activity by filing a workers'
compensation claim and that Denny's was aware of this filing.
However, the transfer to Flint was not an adverse employment
action because Thornton would have received no reduction in
pay and was offered reimbursement for relocation or
App. 8.7
commuting expenses. Even assuming that the transfer
constitutes an adverse employment action, Thornton has failed
to establish sufficient proof under Celotex that he was fired or
transferred because he filed a workers' compensation claim.
Thornton also argues that he has put forward ample evidence
to suggest that the forced transfer to Flint was actually an
attempt to breach a just-cause employment contract and
discharge him. A just-cause contract may be created either by
expressed agreement or may result from an employee's
legitimate expectations grounded in an employer's policy
statement. Toussaint v. Blue Cross and Blue Shield, 408 Mich.
579, 599, 272 N.W.2d 880, 885 (1980). Thornton's claim is
based on language in the employee handbook that was issued
to Thornton at the start of his employment. The handbook
provides that "all employees are treated equitably . . . and that
no one is terminated without just cause." Thornton failed to
establish that Denny's breached a just-cause employment
contract by attempting to transfer him. The just-cause language
applied specifically to terminations, not to attempts to transfer.
There is no evidence that Thomton was terminated for any
reason other than failure to work in the Flint restaurant, and we
have already decided that the transfer order does not constitute
constructive discharge. Refusal to work is a just cause for
termination of employment. Consequently, Thornton has not
put forward sufficient factual evidence which could survive a
motion for a directed verdict at trial regarding whether Denny's
breached Thornton's employment contract.
**4 The judgment of the district court is affirmed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.