Opposition Brief — Levi Strauss & Co. v. Trevino

@

No. 00-0513

In The

Supreme Court of the United States

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LEVI STRAUSS & CO.,

Petitioner,

Vv.

AUGUSTINA TREVINO, HERMINIA HERRERA,

BEATRIZ OLIVAREZ AND GLORIA GUAJARDO,

Respondents.

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On Petition For Writ Of Certiorari

From The United States Court Of Appeals

For The Fifth Circuit

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RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

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Curis A. BrRISACK AARON PENA, Jr.

State Bar No. 03008030 State Bar No. 15739010

Counsel of Record AARON PENA & ASSOCIATES

Nei E. NorqQuest 1110 South Closner

State Bar No. 15088500 Edinburg, Texas 78539

Norquest & Brisack, L.L.P. Telephone: (956) 383-5555

4900 N. 10th Street, Facsimile: (956) 381-0001

Bldg. A-2

McAllen, Texas 78504

Telephone: (956) 682-3195

Facsimile: (956) 686-6693

Counsel for Respondents

Augustina Trevino, Herminia Herrera,

Beatriz Olivarez and Gloria Guajardo

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Wo

WI

TABLE OF CONTENTS

Page

Sentnnmeet OE TG SMO kc is caniawcias codosnsabineesi 1

A. Factual Background of Plaintiffs ............... 1

B. Brief Overview of Fifth Circuit Decision....... 2

Reasons For Denying The Writ .................... 3

PET GE POI 5 5 oieks cn tncescae eine anges 4

Argument and eT eee Ter Teer 5

I. The Fifth Circuit Correctly Concluded That a

Worker’s Compensation Discrimination Claim In

Texas Arises Under The State Worker Compensa-

tion Laws and Is Therefore Barred From Removal

ee gh ee o . aerrree Leer rr ry Tri eee 5

A. Case Law Supports the Fifth Circuit’s Deci-

C. Policy Supports the Fifth Circuit’s Decision... 7

D. Petitioner’s Authorities Inapposite......... 8

II. The Fifth Circuit Has Not Established An Imper-

missible Per Se Rule That Worker’s Compensa-

tion Discrimination Claims Can Never Be

Preempted By § 301 of the Labor Management

NE SUE CRAIN oc iinny dc ea nada eeameden 10

A. This Case Requires No Interpretation of The

CBA, Nor Was It Invoked................. 10

B. Fifth Circuit Has Remained True to the Hold-

€ gh Aero Terr Terre reer ee ree 12

ii

TABLE OF CONTENTS - Continued

| Page

C. Petitioner’s Strawman Argument Rebutted ... 15

D. Petitioner’s Authorities Distinguished...... 16

E. Regardless, Certiorari Review Inappropriate .. 20

CORON 5s v.n cane cdpauciedsdeécks eee 21

iii

TABLE OF AUTHORITIES

Cases

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)..... 17

Arthur v. E.I. DuPont de Nemours & Co., 58 F.3d 121

Nn TR REG ee aren ah Meantime ny ia ee 9

Decoe v. General Motors Corp., 32 F.3d 212 (6th Cir.

ORE ens ss tahoe bs F4 0k choke bs su ehs ow 11, 14

Farrior v. Sodexho, U.S.A., 953 F. Supp. 1301 (N.D.

A CANES xR A S455 Koo Mk ah a oredeenk 6, 8

Garcia v. Rainbo Baking Co. of Houston, 18

F.Supp.2d 683 (S.D. Tex. 1997) ...... Kee RE Shea Kan 14

Hanna v. Fleetguard, Inc., 900 F. Supp. 1110 (N.D.

ee seg Oe wa nd oly we ac cas eka sok 10

Humphrey v. Sequentia, Inc., 58 F.3d 1238 (8th Cir.

2 OPS Se RS apie 8 SParparereae gan ney eae pean 6, 19, 20

Jones v. Roadway Express, Inc., 931 F.2d 1086 (5th

Ah Oe Keke dk gnnn.c p5ash os 44 aks chk abne passim

Jones v. Roadway Express, Inc., 936 F.2d 789 (5th Cir.

IE ea ad ihwk sean bata dR eves snccceesnea cs 15

Lackey v. Gateway Homes, Inc., 944 F. Supp. 870

Gs seen ke cen hwd eh dab sy ehbe sevens 8

Lingle v. Norge Division of Magic Chef, Inc, 486 U.S.

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

Ee re Se a ny eee >, 4%, 12, 17

Local 174, Teamsters, Chauffeurs, Warehousemen and

Helpers of America v. Lucus Flour Co., 369 U.S. 95

Ne CUA ah ory 0 8456S KS ued esd x ri Sae oko ps 17

iv

TABLE OF AUTHORITIES - Continued

Page

Magerer v. John Sexton & Co., 912 F.2d 525 (1st Cir.

a Ck ees Sr sh a Sse a oe anaes 18

Martin v. Shaw's Supermarkets, Inc., 105 F.3d 40 (1st

Cor Cee. GHEE, Se Gis BO CHOUED x kcnancecscece 18

Medrano v. Excel Corp., 985 F.2d 230 (5th Cir.), cert.

Gee, SIS US Gee (ee 6 66 ok iaxccaweneess 15, 16, 19

New v. Sports & Recreation, Inc., 947 F. Supp. 453

5 Re Re re re a ee 6

Patin v. Allied Signal, Inc., 77 F.3d 782 (5th Cir.

NE 5 bon oan ens faba RER UK e on an eer kes dao 6, 19

Reed v. Heil Co., 206 F.3d 1055 (11th Cir. 2000) ....... 6

Roberts v. Autoalliance Int'l, Inc., 996 F.2d 1216,

1993 WL 210717 (6th Cir., June 15, 1993).......... 19

Sanders v. Hughes Aircraft Co., 26 F.3d 132, 1994

WE 227971 (9th Ciz., May 27, 1996). ......000cc05. 20

Sherrod v. American Airlines, Inc., 132 F.3d 1112 (5th

Ce WUE cicada ocueabaeen nn ered eke eo ka wan dee 6

Smith v. WGBH Educational Foundation, Inc., 7 F.3d

218, 1993 WL 375816 (1st Cir., Sept. 27, 1993)..... 18

Spearman v. Exxon Coal USA, Inc., 16 F.3d 722 (7th

Cir. 1994), cert. den’d, 513 U.S. 955 (1994) ....... 9, 10

Subra v. CMS Therapies, inc., 900 F. Supp. 407

ee Rr pe eee ee ee eee 6

Suder v. Blue Circle, Inc., 116 F.3d 1351 (10th Cir.

Ps g wn hn kee RS aha aN See as bs 6

Thomas v. LTV Corp., 39 F.3d 611 (5th Cir. 1994)

LEE Pe Pee OEE SS LPO NUS ore Pe CM OORT F 15, 16, 19

Vv

TABLE OF AUTHORITIES - Continued

Page

Thorne v. WLR Foods, Inc., 111 FSupp.2d 744 (N.D.

WE ED KAR ean kya b edn Rae Ooeaee ReMANO REE 6, 8

Thornton v. Dennys Inc., 992 F.2d 1217, 1993 WL

IS7Ure. (6m Caz, Ape. 20, TORS) oi. ccccccccccuevcers 9

Trevino v. Ramos, 197 F.3d 777 (5th Cir. 1999)..... 15, 16

STATUTES

Se An BE TING 6 ons cave eweueuniisseawseueeas passim

Tex. Labor Code § 451.001 (Vernon 1996).......... 7, i

Tex. Labor Code § 451.002 (Vernon 1996)............. 7

Tex. Labor Code § 451.003 (Vernon 1996)............. 7

MISCELLANEOUS

29A Federal Procedure, L.Ed. § 69:61 (1998).......... 2

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

Now come Augustina Trevino, Herminia Herrera,

Beatriz Olivarez and Gloria Guajardo, Respondents, and

submit this their Brief in Opposition to the Petition for

Writ of Certiorari filed in this cause by Levi Strauss &

Co., Petitioner.

¢

STATEMENT OF THE CASE

A. Factual Background of Plaintiffs

Respondents disagree with the portion of Petitioner’s

Statement of the Case purporting to describe the “Factual

Background of Plaintiffs.” The characterizations con-

tained therein are inaccurate. All four Respondents

asserted retaliatory discharge causes of action based on

having filed workers’ compensation claims. Appendix,

1 9. Respondents did not mention or invoke the Collec-

tive Bargaining Agreement (CBA). Instead, it was Peti-

tioner who invoked the provisions of the CBA in defense

of its actions. Respondents uniformly asserted “that the

true reason she was fired was because she in good faith

instituted a claim and took other protected steps under

the Workers Compensation Act.” Appendix, {] 5-8.

Thus, this Court should not conclude, as Petitioner

wishes this Court to conclude, that Ms. Trevino and Ms.

Guajardo were “terminated pursuant to the CBA,” nor

that Ms. Herrera and Ms. Olivarez were “terminated after

[and because] she failed to provide a properly dated

doctor’s letter,” Petitioners’ Brief, pp. 5, 6. Instead, the

very issue in dispute is whether, as Respondents allege,

they were terminated in retaliation for filing workers

compensation claims. At the removal/remand stage, —

however, the Respondents claims should be accepted as —

true.!

B. Brief Overview of Fifth Circuit Decision

Respondents strongly disagree with that portion of

Petitioner’s Statement of the Case entitled “Brief Over-

view of Fifth Circuit Decision” and stating “The Fifth

Circuit failed to discuss any of the facts set forth above

surrounding . . . the CBA provisions that underlie their

workers’ compensation discrimination claims.” Peti-

tioner’s Brief, at p. 6. In fact, the Fifth Circuit did examine

and discuss the application of the facts as alleged by

Respondents, finding “The primary issue in this case is

the factual question of motivation: Did the defendant fire

the plaintiffs in retaliation for filing workers’ compensa-

tion claims? The answer to this question is not dependent

on an interpretation of the CBA. Plaintiffs have an inde-

pendent right to file workers’ compensation claims with-

out fear of losing their jobs.” Thus, in contrast to

1 “Thus, with few exceptions, the cause of action upon

which the removability of a case will be judged is whatever the

plaintiff declares it to be in his or her pleadings and not what the

plaintiff could have alleged, unless there is fraud or collusion,”

which neither exist nor were alleged by Petitioner. 29A Federal

Procedure, L.Ed. § 69:61 (1998),

Petitioner’s assertion that the Court ignored the facts

surrounding the CBA, the fact is that the Fifth Circuit

considered the CBA but found it not dispositive on the

issue of Petitioner’s intent in terminating Respondents,

which is the relevant issue in a workers’ compensation

retaliation claim.

Additionally, the Fifth Circuit did not, as represented

by Petitioner, “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.” Petitioner’s Brief, at p. 6. Instead, the Fifth Cir-

cuit issued a narrowly drawn opinion holding that the

specific causes of action asserted in this case did not

require interpretation of the CBA, and in fact exist inde-

pendent of the CBA, so that the LMRA, and any preemp-

tion related to same, is inapplicable under the facts and

allegations made in this case.

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~ REASONS FOR DENYING THE WRIT

Certiorari should not be granted for several reasons.

First, the conflict between the Circuits which is alleged is

illusory since the cases cited can be reconciled. Second,

Petitioner misreads the Fifth Circuit’s opinion, which ren-

ders the nature of the legal issues presented by Petitioner

for review inaccurate and/or improper. Third, the right

result was reached below. Fourth, even if this Court felt

that there were a conflict in the circuit opinions, the issue

is not ripe for review.

SUMMARY OF ARGUMENT

Petitioner predicates review upon two propositions:

(a) that the United States Fifth Circuit Court of Appeals

erroneously concluded that a workers’ compensation dis-

crimination/retaliation claim arises under the State

worker compensation laws and is therefore barred from

removal by 28 U.S.C. § 1445(c)?; and (b) that the Fifth

Circuit has established an impermissible per se rule that

workers’ compensation discrimination claims can never

be preempted by § 301 of the Labor Management Rela-

tions Act (LMRA). In both regards, Petitioner is incorrect.

First, courts are virtually unanimous in holding that

a workers’ compensation discrimination/retaliation claim

arises under state workers’ compensation law within the

meaning of § 1445(c), particularly where, as here, the basis

for such claim was established by statute, and even more

particularly where the statute involved, as here, is part of

the state’s workers’ compensation statutory scheme. Any

other interpretation, including that posited by Petitioner,

would fail to meet Congress’ intent in enacting 28 U.S.C.

§ 1445(c), which includes: [1] stemming the flood of

workers’ compensation cases being removed to federal

court; [2] restricting workers’ compensation cases to state

court because they involve purely local disputes implicat-

ing no federal concerns; [3] giving effect to federal rules

of construction and principals of federalism by constru-

ing against removability; and [4] recognizing that federal

2 28 U.S.C. § 1445(c) reads as follows: “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.”

Le. ae

law determines the removability of an action, unfettered

by local law definitions or characterization of the subject

matter.

Second, the Fifth Circuit has established neither an

impermissible rule nor a per se rule that workers’ compen-

sation discrimination claims can never be preempted by

§ 301. Instead, the Fifth Circuit held that, under the

particular allegations and facts of this case, interpretation

of the CBA was not required, and therefore that § 301 was

inapplicable. As such, the Fifth Circuit’s decision in this

case does not conflict with the decision of other federal

circuit courts holding that claims of workers’ compensa-

tion discrimination are preempted by § 301 when they

allege a breach of or require interpretation of a CBA; no

such breach was alleged, nor is any such interpretation

required in order to determine Respondents’ claims for

relief.

?

ARGUMENT AND AUTHORITIES

I. The Fifth Circuit Correctly Concluded That a

Worker’s Compensation Discrimination Claim In

Texas Arises Under The State Worker Compensation

Laws and Is Therefore Barred From Removal By 28

U.S.C. § 1445(c)

A. Case Law Supports the Fifth Circuit’s Decision

Courts are virtually unanimous in joining the Fifth

Circuit in holding that a workers’ compensation discrimi-

nation claim arises under state workers’ compensation

law within the meaning of § 1445(c), particularly where,

as here, the basis for such claim was established by

statute, and even more particularly where, as here, the

statute involved is part of the state’s workers’ compensa-

tion statutory scheme. Jones v. Roadway Express, Inc., 931

F.2d 1086, 1092 (5th Cir. 1991); Sherrod v. American Air-

lines, Inc., 132 F.3d 1112, 1118 (Sth Cir. 1998). C.f., Patin v.

Allied Signal, Inc., 77 F.3d 782, 787 (5th Cir. 1996) (distin-

guishing and finding removable a claim for breach of the

duty of good faith and fair dealing in denying a workers’

compensation claim because such claim was created by

the common law, not by the state’s workers’ compensa-

tion act).

Thus, workers’ compensation retaliation claims have

been held not removable by the vast majority of courts to

address the issue, including Humphrey v. Sequentia, Inc.,

58 F.3d 1238 (8th Cir. 1995); Reed v. Heil Co., 206 F.3d 1055

(11th Cir. 2000); Suder v. Blue Circle, Inc., 116 F.3d 1351

(10th Cir. 1997); Farrior v. Sodexho, U.S.A., 953 F. Supp.

1301 (N.D. Ala. 1997); New v. Sports & Recreation, Inc., 947

F. Supp. 453 (S.D. Ala. 1996); Subra v. CMS Therapies, Inc.,

900 F. Supp. 407 (M.D. Ala. 1995); Thorne v. WLR Foods,

Inc., 111 F. Supp. 2d 744 (N.D. W.Va. 2000). All of these

courts also explicitly recognize the distinction between

workers compensation retaliation claims arising from a

statute, which are not removable, and workers compensa-

tion retaliation claims arising under common law, which

have been found, under limited circumstances, potentially

removable in a few states (not including Texas). Hum-

phrey, at p. 1245; Suder, at p. 1352; Reed, at p. 1059; Subra,

at p. 410; New, at p. 457.

B. Statutory Design Supports Fifth Circuit Deci-

sion

Discrimination, including retaliation, for filing a

workers’ compensation claim is prohibited in Texas by

Tex. Labor Code § 451.001 (Vernon 1996). This section,

along with § 451.002 (Vernon 1996), which delineates the

available remedies and burden of proof, and § 451.003

(Vernon 1996), which extends such remedies to include

injunctive relief, comprise Subtitle B of the Texas

Workers’ Compensation Act. Subtitle A is titled “Texas

Workers’ Compensation Act.” Subtitle B is titled “Dis-

crimination Issues.” Subtitle C is titled “Workers’ Com-

pensation Insurance Coverage for Certain Government

Employees.” Subtitles A, B and C are contained together

in Title 5, titled “Workers’ Compensation.”

A review of these provisions, including the manner

in which they are set out, makes it clear that they are

complimentary pieces of a comprehensive plan to provide

workers’ compensation coverage. Thus, the court in Jones

v. Roadway Express, Inc., supra, at 1092, acted correctly in

treating workers’ compensation retaliation claims as

within the workers’ compensation laws of the State, and

thus not removable.

C. Policy Supports the Fifth Circuit’s Decision

Any interpretation of retaliatory discharge claims as

independent from the workers’ compensation laws,

including the interpretation posited by Petitioner, fails to

meet Congress’ intent in enacting 28 U.S.C. § 1445(c). This

intent includes: [1] stemming the flood of workers’ com-

pensation act cases being removed to federal court; [2]

restricting workers’ compensation act cases to state court

because they involve purely local disputes implicating no

federal concerns; [3] giving effect tc federal rules of con-

struction and principles of federalism by construing

against removability; and [4] recognizing that federal law

determines the removability of an action, unfettered by

local law definitions or characterization of the subject

matter. Lackey v. Gateway Homes, Inc., 944 F. Supp. 870, 873

(N.D. Ala. 1996); Farrior v. Sodexho, U.S.A., 953 F. Supp.

1301, 1304 (N.D. Ala. 1999), quoting Roberts v. Beaulieu of

America, Inc., 950 F. Supp. 1509 (N.D. Ala. 1996); Thorne v.

WLR Foods, Inc., 111 F. Supp. 2d 744, 745 (N.D.W.Va.

2000), quoting Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.

100, 108, 61 S. Ct. 868, 85 L. Ed. 1214 (1941). In fact, some

courts logically recognize and hold that a workers’ com-

pensation retaliation claim, whether or not codified as

part of its workers compensation chapter, is “essential to

the efficacy of [the] statutory worker’s compensation

scheme,” and thus should not be removable. Farrior v.

Sodexho, U.S.A., 953 F. Supp. 1301, 1304 (N.D. Ala. 1999),

quoting Roberts v. Beaulieu of America, Inc., 950 F. Supp.

1509 (N.D. Ala. 1996). See also Jones v. Roadway Express,

Inc., 931 F.2d at 1092; Thorne v. WLR Foods, Inc., 111

F. Supp. 2d at 748.

D. Petitioner’s Authorities Inapposite

The cases cited by Petitioner are not contrary to the

holdings cited above. Instead, the authorities cited by

Petitioner involve those few states where workers com-

pensation retaliation claims arise under the common law,

not statute, and constitute an independent tort. Such

claims are held not to arise under the state’s workers’

compensation law. Spearman v. Exxon Coal USA, Inc., 16

F.3d 722, 724 (7th Cir. 1994), cert. den’d, 513 U.S. 955 (1994)

(analyzing Illinois law);> Thornton v. Denny's Inc., 992 F.2d

1217 (table), 1993 WL 137078*2 (6th Cir., Apr. 29, 1993)

(... “[Plaintiff’s] claim does not arise under the Michi-

gan workers’ compensation law. . . . The workers’ com-

pensation statute provides neither the mechanisms nor

the remedy for this type of suit.”)

Nor should this Court read Spearman too broadly.

Even cases adopting the spirit of Spearman recognize that

its holding is inapplicable to a retaliatory discharge claim.

See, e.g., Arthur v. E.I. DuPont de Nemours & Co., 58 F.3d

121, 124-28 (4th Cir. 1995) (comparing a deliberate inten-

tional acts statute and a workers compensation retaliatory

discharge claim; an “action for retaliatory discharge is

integrally related to the just and smooth operation of the

workers’ compensation system; it ensures that those seek-

ing compensation benefits are not scared out of making

claims;” thus, “the significant differences between a retal-

iatory discharge claim and [this] claim render the

decisions remanding retaliatory discharge actions inap-

plicable here”). Likewise, courts adopting the Spearman

3 It should also be noted that a strong dissent was issued in

Spearman, which opinion is consistent with Respondents’

interpretation of Lingle v. Norge Division of Magic Chef, Inc., 486

U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988), and Jones v.

Roadway Express, Inc. stated herein.

10

rationale recognize that its holding is applicable only in

states where workers compensation retaliatory discharge

claims are treated as common law, independent tort

claims, unlike Texas. Hanna v. Fleetguard, Inc., 900 F. Supp.

1110, 1118, 1122-23 (N.D. Iowa 1995).

II. The Fifth Circuit Has Not Established An Imper-

missible Per Se Rule That Worker’s Compensation

Discrimination Claims Can Never Be Preempted By

§ 301 of the Labor Management Relations Act

(LMRA).

A. This Case Requires No Interpretation of The

CBA, Nor Was It Invoked

Petitioner predicates its second basis for review upon

the proposition that the claims brought by Respondents

in this case require interpretation of the Collective Bar-

gaining Agreement (CBA). See Petitioner’s Brief, p. 16

(“Trevino also conflicts with decisions . .. which have held

that claims of workers’ compensation discrimination are

preempted by § 301 when they allege a breach or require

interpretation of a CBA”); p. 21 (“As demonstrated above,

[these] Circuits have held that workers’ compensation

retaliation claims are preempted if adjudicating the

claims would require interpretation of a CBA or if the Plain-

tiffs claim that a provision contained in the CBA discrimi-

nates against employees who have pursued workers’

compensation claims.”); p. 22 (“In Trevino, the Fifth Cir-

cuit determined that the Plaintiffs’ claims that they were

discriminatorily terminated because they pursued their

rights under the workers’ compensation laws were not

11

preempted even though they involve the interpretation of

detailed LOA provisions in the CBA. This Court has not

considered whether the workers’ compensation discrimi-

nation claim of an employee who was terminated in accor-

dance with the LOA provisions in a CBA is preempted by

§ 301”).

This conclusion is erroneous. Petitioner misstates and

misconstrues the holding of the Court of Appeals. As the

Fifth Circuit recognized, and as Respondents have main-

tained throughout, Respondents’ claims arise indepen-

dent of the provisions of the CBA. As this honorable

Court recognized in Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399, 413, 108 S. Ct. 1877, 1885, 100 L. Ed. 2d

410, 423 (1988), state law is not always preempted when a

workers’ compensation claim is brought, but in fact is

preempted only where the claim asserted “requires the

interpretation of a collective-bargaining agreement”.

Where, as here, the right to be free fron: retaliatory dis-

charge for pursuing workers’ compensation exists inde-

pendent of the CBA, as it did in Lingle, such right does

not depend upon or originate in the CBA. C.f. Decoe v.

General Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994) (“if

the Plaintiff can prove all of the elements of his claim

without the necessity of contract interpretation, then his

claim is independent of the labor agreement”). Instead,

the right would exist even if there were no CBA. In other

words, this right exists to each employee individually,

and does not arise solely because Respondents are mem-

bers of a collective organization.

In fact, Respondents never invoked any provision of

the CBA in their Petition, and neither was the CBA cited

at any point in support of the Respondents’ claims.

12

Instead, it is Petitioner who invokes the provisions of the

CBA, not Respondents, and the provisions of the CBA are

cited by Petitioner not to establish the basis of Respon-

dents’ recovery, but are instead invoked in defense of and

in purported justification of Petitioner’s actions.

B. Fifth Circuit Has Remained True to the Holding

in Lingle

Notwithstanding opposing counsel’s arguments to

the contrary, the Fifth Circuit has maintained and

enforced, not ignored, the holdings and distinctions rec-

ognized in Lingle. In Jones v. Roadway Express, Inc., 931

F.2d 1086 (5th Cir. 1991), rehearing den'd, 936 F.2d 789 (5th

Cir. 1991), the Fifth Circuit cited this Court’s decision in

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

413, 108 S. Ct. 1877, 1885, 100 L. Ed. 2d 410, 423 (1988),

holding that § 301 preempts an application of state law

only if such application requires the interpretation of a

collective-bargaining agreement. Noted the Fifth Circuit,

“Congress did not intend that section 301 should preempt

‘state rules that proscribe conduct, or establish rights and

obligations, independent of a labor contract.’ ” Id. at 1089.

The Jones Court even extended this rule to circumstances

beyond those in the present case, holding that, “A plain-

tiff’s state law claims wil! not be preempted, even when

they are ‘intertwined’ with a CBA, so long as they are not

‘inextricably intertwined’ with it. [Citations omitted]

Indeed, either party may use a CBA to support the cred-

ibility of its claims.” Id. at 1089.

13

In deciding that a claim under art. 8307c (now

§ 451.001, et seq. of the Labor Code) is not preempted, the

Jones court stated as follows:

As in Lingle, the basic issue in this case is

whether a retaliatory discharge occurred. Reso-

lution of this issue does not require an inter-

pretation of the CBA. The trial court has to

ascertain if retaliation was among the reasons

for which Roadway dismissed Jones. [Citation

omitted]. Roadway may have had other reasons,

even reasons which the CBA justified, for dis-

missing Jones. But if retaliation was a factor,

then for the purposes of Jones’ article 8307c

claim, an interpretation of the CBA is not inex-

tricably intertwined with the state-law claim. As

this court has earlier noted, however, [citation

omitted], we 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.

Furthermore, the right to be free from retalia-

tory discharge for pursuing workers’ compensation

exists for Jones, as it did for the employee in

Lingle, independently of the CBA. The right origi-

nates in the statute which Texas has enacted to

protect employees seeking compensation for

work-related injuries. It does not depend upon

any right or duty originating in the CBA. Jones’

right would exist even were there no CBA. The

right that Jones claims accrues to employees “as

individual workers, not as members of a collec-

tive organization.”

Id. at 1090.

In this case, as in Jones, Respondents’ claims are not

dependant upon an interpretation of the CBA; “[r]Jather,

14

Plaintiff’s right to be free from retaliation is grounded in

Texas statute, and not the CBA.” Garcia v. Rainbo Baking

Co. of Houston, 18 F. Supp. 2d 683 (S.D. Tex. 1997).

Respondents established a prima facie case of retaliatory

discharge by showing that they were discharged after

filing their workers compensation claims. C.f. Decoe v.

General Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994) (“if

the plaintiff can prove all of the elements of his claim

without the necessity of contract interpretation, then his

claim is independent of the labor agreement”). The CBA

appears nowhere on the face of Respondents’ complaint,

nor is an action under the CBA implied or stated. Instead,

it was Petitioner who invoked the CBA in defense of its

actions.*

Thus, there is no escaping the fact that, were the CBA

completely eliminated from this case, Respondents would

still have a basis for asserting their cause of action. Thus,

Petitioner’s strawman argument that the Fifth Circuit has

somehow ignored or overturned precedent requiring pre-

emption where* interpretation of a CBA is involved is.

inapplicable to this case, where such interpretation is not

involved.

4 Respondents admit that they responded to the defense

raised by Petitioner under the CBA, i.e. the leave of absence

provision, but this does not transform this into a preempted

cause of action. As noted, Courts “do not require that the CBA

be irrelevant to the dispute” in order to require remand. Jones v.

Roadway Express, supra at p. 1090.

Pees eRe A Sho Sree Tn a nee ee ee

15

C. Petitioner’s Strawman Argument Rebutted

Petitioner is likewise erroneous in alleging that “Trev-

ino, in affect, holds that a workers’ compensation retalia-

tion claim can never be preempted,” Petitioner’s Brief, p.

13, and that “[t]he Fifth Circuit failed to discuss any of

the facts set forth [in Petitioner’s Brief] 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.” Petitioner’s Brief, p. 6. Petitioner is in error.

First, the Fifth Circuit spent a significant amount of time

presenting and discussing the underlying claims and its

analysis of same before concluding that the Respondents’

claims were independent of, and not intertwined with,

interpretation of the CBA. See Trevino v. Ramos, 197 F.3d

777, 778-781 (5th Cir. 1999). Second, the Fifth Circuit’s

opinion indicates that it was not precluding the possi-

bility that, in other factual circumstances, a contrary

result might be reached. In fact, given different circum-

stances, the Fifth Circuit has found preemption. See, e.g.,

Medrano v. Excel Corp., 985 F.2d 230 (5th Cir.), cert. den’d,

510 U.S. 822 (1993), wherein the plaintiff was claiming

that application of a provision in the CBA discriminated

against him in violation of § 451, and Thomas v. LTV Corp.,

39 F.3d 611, 620 (5th Cir. 1994), in which the plaintiff

“repeatedly testified that the basis for his wrongful dis-

charge claim was the interpretation and application of the

[Attendance Probation Agreement].” See also Jones v.

Roadway Express, Inc., 936 F.2d 789 (5th Cir. 1991), where

EE

a

16

the Court distinguished the claims in Thomas and Medrano

as “arising under” the CBA, holding:

In Thomas and Medrano, the plaintiffs relied

solely on the CBA to support their retaliatory

discharge claims. See Thomas, 39 F.3d at 621;

Medrano, 985 F.2d at 233-34. In the case at bar,

the Plaintiff does not rely on the CBA in his

complaint, and his deposition testimony does

not explicitly indicate that a provision of the

CBA is the sole basis of his retaliatory discharge

claim.

In effect, Petitioner is asking this court to overturn the

intent of Congress because Petitioner finds it to be unrea-

sonable. Petitioner complains that “by concluding the

workers’ compensation discrimination claim ‘arises

under’ a state’s workers’ compensation laws within the

meaning of § 1445(c), Trevino effectively deprives a fed-

eral district court of removal jurisdiction over such

claims.” However, this appears to have been Congress’

express, and exact, purpose. The purpose of 28 U.S.C.

§ 1445(c) was and remains to stop the plethora of cases

being removed to federal court. The narrow interpreta-

tion of this provision posited by Petitioner is contrary to

this stated purpose. For this reason, the Fifth Circuit

stated that Congress did not intend that § 301 should

preempt ” ‘state rules that proscribe conduct, or establish

rights and obligations, independent of a labor contract.’ ”

Jones v. Roadway Express, Inc., 931 F.2d at 1089.

D. Petitioner’s Authorities Distinguished

The Supreme Court decisions cited by Petitioner are

not in conflict with the Fifth Circuit’s decision in this

17

case. Petitioner’s citation to Local 174, Teamsters, Chauf-

feurs, Warehousemen and Helpers of America v. Lucus Flour

Co., 369 U.S. 95, 103 (1962), cited for the proposition that

“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” is inapposite to this

case, wherein Respondents are not alleging a violation of

the CBA, and instead allege a right independent of the

CBA, i.e. the statutory right not to be discriminated or

retaliated against for having filed a workers’ compensa-

tion claim.

al

a

Likewise, the holding in Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 210-11 (1985), cited for the proposition that

“the Court extended the preemptive effect of § 301

beyond suits alleging contract violations to suits involving

the interpretation of a CBA,” Petitioner’s Brief at pp. 13-14,

is inapposite to this case where, again, Respondents’

claims do not involve interpretation of a CBA, but assert

rights independent of a CBA.

Finally, the holding in Lingle v. Norge Division of

Magic Chef, Inc., 486 U.S. 399 (1988), obviously is not in

conflict with the holding in this case. Although Petitioner

| argues that the Lingle Court “reaffirmed the broad and

preclusive effect of § 301 preemption when a state law

claim requires interpretation of a term in a CBA,” Brief at

p. 15, and further argues that preemption occurs if “reso-

lution of a state-law claim depends upon the meaning of

a Collective-Bargaining Agreement,” Petitioner’s Brief at

p- 16, neither point is applicable to this case, wherein

recognition of Respondents’ rights does not depend upon

the meaning of the Collective Bargaining Agreement.

Fe en ee ee

18

Petitioner is likewise incorrect in asserting that the

Fifth Circuit’s decision in this case conflicts with the

decisions of other federal circuit courts. For example, in

the First Circuit cases of Magerer v. John Sexton & Co., 912

F.2d 525 (1st Cir. 1990); Smith v. WGBH Educational Foun-

dation, Inc., 7 F.3d 218, 1993 WL 375816 (1st Cir. Sept. 27,

1993); and Martin v. Shaw's Supermarkets, Inc., 105 F.3d 40

(1st Cir.), cert. den’d, 522 U.S. 818 (1997), all relied on by

Petitioner and all involving Massachusetts law, retalia-

tory discharge claims were, by the express terms of the

Massachusetts statute, subject to the terms of any CBA.

Magerer, at p. 529-30. Additionally, the First Circuit held

in these cases that the management rights clause in the

CBA provided standards that governed the underlying

retaliatory discharge claim, Magerer at 530; Martin, at 43,

and further found that the CBA and workers’ compensa-

tion law in Massachusetts were or may be in conflict.

Smith, at *1; Martin, 105 F.3d at 44. In other words, as

Petitioner admits, “because Plaintiff’s claim required inter-

pretation of the CBA, the court held that it was pre-

empted,” Petitioner’s Brief, at p. 18, and “because the

management rights clause was arguably inconsistent with the

statute, the Court would have to construe the CBA to

decide the claims.” Petitioner’s Brief, at p. 18. Such inter-

pretation is not required in this case, wherein Respon-

dents’ rights exist independent of the CBA and are not in

conflict with the CBA.

5 Likewise, the CBA in this case did not contain a

“management rights” clause and the statute does not

incorporate same, both of which were true in Magarer, Martin

and Smith.

19

The same is also true of the Court’s holding in Roberts

v. Autoalliance Int'l, Inc., 996 F.2d 1216 (table), 1993 WL

210717 (6th Cir. June 15, 1993). In that case, 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.” Petitioner’s Brief, at p. 19, quoting Roberts v.

Autoalliance Int'l, Inc., at *5. No such interpretation is

required in this case, where, as the Fifth Circuit noted,

“The right originates in the statute which Texas has enac-

ted... . It does not depend on any right or duty originat-

ing in the CBA. [Plaintiff’s] right would exist even were

there no CBA.” Jones v. Roadway Express, supra at 1090.

Illuminating is the Court’s discussion in Humphrey v.

Sequentia, Inc., 58 F.3d 1238 (8th Cir. 1995). Although

Petitioner is correct in noting that the Humphrey Court

declined to adopt a rule that a claim which arises under a

state’s workers’ compensation law is per se nonremov-

able under § 1445(c), this holding is neither novel nor in

conflict with Fifth Circuit precedent, which also recog-

nizes that claims unlike those involved in this case (such

as claims where the plaintiff is invoking the CBA, e.g.,

Medrano v. Excel Corp., supra; Thomas v. LTV Corp., supra,

or where the Plaintiff’s claim originated at common law,

e.g. Patin v. Allied Signal, Inc., supra at 787), may be

removable. More specifically, when addressing the claims

which are similar to those in this case, the Humphrey

Court held as follows:

Under the plain meaning of the statute, where a

state legislature enacts a provision within its

workers’ compensation laws and creates a speci-

fic right of action, a civil action brought to

20

enforce that right of action is, by definition, a

civil action arising under the workers’ compen-

sation laws of that state and therefore § 1445(c)

applies; under such circumstances, the action

would be non-removable, subject only to the

complete preemption doctrine.

Humphrey, supra. Thus, quite in contrast to the proposi-

tion posited by Petitioner, Humphrey v. Sequentia, Inc.

supports Respondents’ position.

Finally, in the case cited from the Ninth Circuit,

Sanders v. Hughes Aircraft Co., 26 F.3d 132 (table), 1994 WL

227971 (9th Cir. May 27, 1994), “the court noted that the

plaintiff’s complaint indicated that his retaliatory termi-

nation claim was in part based on alleged violations of the

CBA. [citations omitted]. The Court held that to the extent

the plaintiff's complaint indicated that his claim was partly

based on aileged violations of the CBA, his claim was _pre-

empted by § 301.” Petitioner’s Brief, at p. 21, quoting

Sanders v. Hughes Aircraft Co., Id. at *2. Petitioner’s own

analysis of the holding in that case demonstrates that

same is inapposite to the present holding.

E. Regardless, Certiorari Review Inappropriate

The cases cited by Petitioner are inapposite to the

Fifth Circuit’s holding in this case. However, even if these

cases did stand for the propositions cited by Petitioner,

they would still not merit review by this Honorable

Court. The principles discussed have not yet reached the

level of “maturity,” ripeness or conflict warranting

Supreme Court review.

21

CONCLUSION

Certiorari should not be granted for several reasons.

First, the conflict between the Circuits which is alleged is

_illusory; the cases cited can be reconciled, particularly

when the Court considers whether the claims asserted

arose at common law and are independent of the

workers’ compensation law, or arose by statute and are

integral to the workers’ compensation scheme. Second,

Petitioner misreads the Fifth Circuit’s opinion, which ren-

ders the nature of the legal issues presented by Petitioner

for review inaccurate and/or improper. Inter alia, the

Fifth Circuit has not established a per se rule that

workers’ compensation discrimination and/or retaliation

claims can never be preempted by § 301 of the LMRA.

Third, for the reasons stated above, as well as the reasons

stated by the Fifth Circuit Court of Appeals, the right

result was reached below. Fourth, even if this Court feels

there is a conflict in the Circuit opinions and that the

other reasons posited by Respondents for denying cer-

tiorari are invalid, the issue is not ripe for review because

the Circuit courts are still developing the law and distinc-

tions important to a cohesive and comprehensive policy

in this area.

22

PRAYER

Respondents pray that, for the reasons stated and/or

in the interests of justice, the Petition for Writ of Cer-

tiorari sought by Levi Strauss & Co. be denied.

Respectfully submitted,

Curis A. BRISACK

State Bar No. 03008030

Nei E. NorqQuest

State Bar No. 15088500

Norquest & Brisack, L.L.P.

4900 N. 10th Street,

Bldg. A-2

McAllen, TX 78504

Telephone: (956) 682-3195

Telecopier: (956) 686-6693

Lead Counsel for

Plaintiffs-Respondents On Appeal

AARON PENA, Jr.

State Bar No. 15739010

AARON PENA & ASSOCIATES

1110 South Closner

Edinburg, Texas 78539

Telephone: (956) 383-5555

Telecopier: (956) 381-0001

Attorneys for Plaintiffs-Respondents

App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

McALLEN DIVISION

AGUSTINA TREVINO,

HERMINIA HERRERA,

BEATRIZ OLIVAREZ,

AND GLORIA

GUAJARDO

VS.

MIKE RAMOS AND

LEVI STRAUSS & CO.

CIVIL ACTION NO.

M-95-CV-262 JURY

+ + + & & Heh HB HH HF

PLAINTIFFS’ SECOND AMENDED

ORIGINAL COMPLAINT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME, AGUSTINA TREVINO, HERMINIA

HERRERA, BEATRIZ OLIVAREZ, AND GLORIA GUA-

JARDO, hereinafter referred to as plaintiffs, complaining

of MIKE RAMOS AND LEVI STRAUSS & CO., hereinaf-

ter called by name or collectively as defendants, and for

such cause of action, would respectfully show unto the

Court and jury as follows:

A.

VENUE AND JURISDICTION

1. Plaintiffs, AGUSTINA TREVINO, HERMINIA

HERRERA, BEATRIZ OLIVAREZ AND GLORIA GUA-

JARDO, are residents of Hidalgo County, Texas.

2. Defendant, MIKE RAMOS, is an individual resid-

ing in Hidalgo County who has been served with citation

App. 2

and has appeared herein. No service is necessary at this

time.

3. Defendant, LEVI STRAUSS & CO., is a foreign

corporation formed under the laws of another state, that

has been served with process and has appeared herein.

No service is necessary at this time.

4. Venue is proper in Hidalgo County, Texas in that

the incidents the basis of this cause of action occurred in

Hidalgo County and plaintiff further resides in the

county.

B.

FACTUAL ALLEGATIONS

5. Agustina Trevino: Plaintiff Agustina Trevino

accepted employment with Levi Strauss & Co. During her

employment, plaintiff performed all of the duties

assigned to her with loyalty, dedication and hard work.

On or about February 9, 1994, while in the course of her

employment with Levi Strauss & Co., plaintiff received

an on the job injury. Plaintiff Agustina Trevino thereafter,

took steps towards beginning her workmen’s compensa-

tion claim when she reported her injury to her employer

and later sought medical treatment for such injury. Due

to the nature of these injuries defendant notified it’s

workmen’s compensation carrier to pay for plaintiff’s

medical expenses. On or about March, 1995, plaintiff was

wrongfully discharged by Mike Ramos, a managment

employee of the defendant corporation. Plaintiff Agustina

Trevino asserts that the true reason she was fired was

because she in good faith instituted a claim and took

ai

App. 3

other protected steps under the Workers Compensation

Act.

6. Herminia Herrera: Plaintiff Herminia Herrera

accepted employment with Levi Strauss & Co. During her

employment, plaintiff performed all of the duties

assigned to her with loyalty, dedication and hard work.

On or about May 05, 1994, while in the course of her

employment with Levi Strauss & Co., Plaintiff Herminia

Herrera received an on the job injury. Plaintiff thereafter,

i took steps towards beginning her workmen’s compensa-

tion claim when she reported her injury to her employer

and later sought medical treatment for such injury. Due

to the nature of these injuries defendant notified it’s

workmen’s compensation carrier to pay for plaintiff's

medical expenses. On or about January 11, 1995, plaintiff

was wrongfully discharged by Mike Ramos, a manag-

ment employee of the defendant corporation. Plaintiff

Herminia Herrera asserts that the true reason she was

fired was because she in good faith instituted a claim and

took other protected steps under the Workers Compensa-

tion Act.

Bie 600 Sowell A laeletethil Oh eshidl Dase CORGP SR iare aka weprnynihnaied

7. Beatriz Olivarez: Plaintiff Beatriz Olivarez

accepted employment with Levi Strauss & Co. During her

employment, plaintiff performed all of the duties

assigned to her with loyalty, dedication and hard work.

On or about May 11, 1995, while in the course of her

employment with Levi Strauss & Co., plaintiff received

an on the job injury. Plaintiff Beatriz Olivarez thereafter,

took steps towards beginning her workmen’s compensa-

tion claim when she reported her injury to her employer

and later sought medical treatment for such injury. Due

to the nature of these injuries defendant notified it’s

oS

App. 4

workmen’s compensation carrier to pay for plaintiff's

medical expenses. On or about January 11, 1995, plaintiff

was wrongfully discharged by Mike Ramos, a manag-

ment employee of the defendant corporation. Plaintiff

Beatriz Olivarez asserts that the true reason she was fired

was because she in good faith instituted a claim and took

other protected steps under the Workers Compensation

Act.

8. Gloria Guajardo: Plaintiff Gloria Guajardo

accepted employment with Levi Strauss & Co. During her

employment, plaintiff performed all of the duties

assigned to her with loyalty, dedication and hard work.

On or about June, 1993, while in the course of her

employment with Levi Strauss & Co., plaintiff received

an on the job injury. Plaintiff Gloria Guajardo thereafter,

took steps towards beginning her workmen’s compensa-

tion claim when she reported her injury to her employer

and later sought medical treatment for such injury. Due

to the nature of these injuries defendant notified it’s

workmen’s compensation carrier to pay for plaintiff's

medical expenses. On or about June 06, 1994, plaintiff

was wrongfully discharged by Mike Ramos, a manag-

ment employee of the defendant corporation. Plaintiff

Gloria Guajardo asserts that the true reason she was fired

was because she in good faith instituted a claim and took

other protected steps under the Workers Compensation

Act.

= fe le

App. 5

D.

WRONGFUL DISCHARGE (8307)

9. This lawsuit has been filed to remedy the wrong

done to plaintiffs which arose from their exercise of their

rights under the Workers Compensation Act and Article

8307c (Now Tex. Labor Code, Section 451.001). For inju-

ries they received, in the course and scope of their

employment, plaintiffs did in good faith take steps

towards instituting a proceeding as well as other pro-

tected steps under the Worker’s Compensation Act. Hav-

ing been discriminated against, plaintiffs seek full redress

for all the damages they have incurred. Plaintiffs allege

that there was no legitimate business justification for

Plaintiff’s termination in that Plaintiffs had always per-

formed an excellent job for the Defendant and that there

was work available that the Plaintiffs could perform.

Plaintiffs assert that the true reason they were fired was

because they in good faith instituted a proceeding and

filed a claim under the Texas Worker’s Compensation

Act. Plaintiffs further assert and intend to prove that the

treatment they received was a pattern and practice

engaged in by the Defendant corporation towards the

Plaintiffs and others similarly situated. This unwritten

plan or scheme was to discriminate and/or terminate

against employees for taking protected steps under the

Worker’s Compensation Act.

App. 6

E.

DAMAGES

10. Actual Damages: As a result of the incidents

described above, that made the basis of this suit, plain-

tiffs have incurred damages in the following respects:

a. Lost Earnings: At the time of the incident

complained of, plaintiffs were gainfully

employed. As a proximate result of the

wrongful acts of the defendant, plaintiffs

were unable to attend to their occupations

and thereby suffered loss of income for

which they hereby sue. In all reasonable

probability their loss of income will con-

tinue long into the future, if not for the

balance of plaintiffs’ natural life, all to their

damage for which they hereby sue.

b. Past and Future Mental Anguish: As a result

of the incidents described above, made the

basis of this suit, plaintiffs have suffered

mental pain and anguish. In all reasonable

probability, plaintiffs will continue to suffer

such mental pain and anguish for a long

time into the future, if not for the balance of

their natural lives.

12. [sic] Exemplary Damages: The conduct of the

defendants, set out above, was carried out and constitu-

ted such an entire want of care as to constitute a con-

scious indifference to the rights or welfare of the

plaintiffs. Plaintiffs are entitled to recover exemplary

damages to deter such cruel and undignified procedures

by the defendant in the future. Accordingly, plaintiffs

request that exemplary damages be awarded against the

defendants.

b).

c).

d).

f).

a).

e).

App. 7

F.

PRAYER

WHEREFORE PREMISES CONSIDERED, plaintiffs

pray that the Honorable Court grant the following:

Judgment against Defendants, jointly and

severally, for Plaintiffs’ damages;

Punitive Damages;

Prejudgment interest as allowed by law;

Interest on said judgment at the legal rate

from date of judgment;

For costs of suit herein;

Such other relief as the Court deems proper.

Respectfully submitted,

AARON PENA & ASSOCIATES

ATTORNEYS AT LAW

1110 S. Closner

Edinburg, Texas 78539

(210) 383-5555 Telephone

(210) 381-0001 Telefax

BY:

KATHLEEN HENLEY

STATE BAR NO. 09465100-

FEDERAL BAR NO. 11792

ATTORNEY FOR PLAINTIFF