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Are an employee's claims of discrimination under state statutes and common law completely preempted by section 301 of the Labor Management Relations Act, and thereby automatically subject to removal to federal court, whenever the employer asserts that its conduct was permitted by an applicable collective bargaining agreement?

The opinion of the court of appeals is reported at 79 F.3d 485, and appears in the Appendix to this Petition at 1a to 5a (App. 1a-5a). The district court's memoranda and orders denying petitioner's motion to remand this case to the state court from which it had been removed, and then denying a motion for reconsideration of that order, are printed at App. 6a and 7a to 10a. The district court's order granting summary judgment to respondent appears at App. 12a to 18a. The district court's memoranda and orders are not reported.

The judgment of the court of appeals was entered on April 10, 1996. App. 1a-5a. This Court has jurisdiction to review that judgment under 28 U.S.C. § 1254(1).

Section 301(a) of the Labor-Management Relations Act, 29 U.S.C. § 185(a), provides as follows:

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

Section 21.051 of the Texas Labor Code provides as follows, in pertinent part:

[A]n employer commits an unlawful employment practice if because of race . . . the employer (1) discriminates in any other manner against an individual in connection with compensation or the terms, conditions or privileges of employment or (2) limits . . . an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity.

A. Facts.

Petitioner Raymond Reece, who is black, has been an electrician for respondent Houston Lighting and Power Company since 1974; he currently holds the position of head cable splicer. Several times he sought promotions to the position of crew leader and access to company classes that other head cable splicers were taking in order to enhance their skills and improve their chances for promotion. He was denied such opportunities, and noticed that respondent consistently gave them to white employees with less seniority than he. For example, during 1994 and 1995, 19 white employees in respondent's underground cable department received fiber optic training; no black employees received such training. At the same time, eighteen white employees, but no black employees, took classes on troubleshooting. And eight white, and no black, employees hold positions as crew leaders.

Respondent's production and maintenance employees are represented in collective bargaining by Local 66 of the International Brotherhood of Electrical Workers, and work under a collective bargaining agreement ("CBA") between Local 66 and respondent. Under the CBA, promotions for most employees are governed by seniority, ao long as ability, skill and qualifications are equal. However, selection, promotion and assignment of head journeymen (of which head cable splicers such as petitioner are one kind), are within respondent's "sole discretion"; the CBA allows respondent to consider not only ability, skill, qualifications, performance, seniority, attendance and conduct, but any other matter. Similarly, the CBA reserves to respondent sole discretion to promote to positions not covered by the CBA, such as crew leaders.

B. Proceedings Below.

On April 18, 1994, petitioner filed charges with the Equal Employment Opportunity Commission and the Texas Commission on Human Rights ("TCHR"), alleging that he had been denied both promotions and training opportunities because of his race and because he had previously filed a lawsuit against respondent charging race discrimination. While the agencies investigated these allegations, respondent continued to deny petitioner's request to attend classes held later that same year. Accordingly, after the TCHR issued a right to sue letter, petitioner filed suit on March 9, 1995, in the 215th Judicial District Court of Harris County, Texas, alleging that respondent had both discriminated against him on the basis of race, and retaliated against him for having filed his 1994 discrimination charge. Petitioner alleged both that this conduct violated Section 21.001 of the Texas Labor Code, and that it was extreme and outrageous in violation of state common law. Petitioner deliberately confined his allegations to violations of state law, and pleaded no claim under Title VII of the Civil Rights Act, under the CBA or section 301 of the Labor Management Relations Act ("LMRA"), or under any other federal law.

Nevertheless, on April 6, 1995, respondent removed the case to the United States District Court for the Southern District of Texas, Houston Division. Respondent pointed out that the CBA spoke to the issue of promotions, and authorized it to take seniority and a variety of other matters into consideration. Thus, according to respondent, it would ultimately be necessary to consider the CBA in order to decide whether respondent had discriminated or retaliated against petitioner, and this need to consider the CBA, in turn, preempted petitioner's claim and replaced his state law claim with a federal claim under section 301 of the LMRA, over which the federal courts had subject matter jurisdiction.

Petitioner moved to remand the case to state court, pointing out that defenses based on federal law do not ordinarily provide a basis for removal. Petitioner argued that, although the "complete preemption" doctrine makes section 301 preemption a partial exception to this general rule, under this Court's decision in Lingle v. Norge, 486 U.S. 399 (1988), a state law claim alleging retaliatory discharge is not ordinarily preempted by the LMRA because such claims typically do not require interpretation of a CBA; rather, the question in such cases is a factual one: was the employer's discharge decision motivated by forbidden animus, in which case the claim succeeds, or by some other reason, in which case it fails. Nevertheless, by a one paragraph order, the district court ruled that petitioner's claims "require interpretation of the [CBA] and are therefore preempted by section 301 . . .." App. 6a.

Petitioner moved for reconsideration, arguing that there was no need to examine the CBA in order to determine whether his race and retaliation claims were valid. He acknowledged that, in a recent decision, Medrano v. Excel Corp., 985 F.2d 230 (1993), the Fifth Circuit had held that a state law retaliatory discharge claim was preempted because it was predicated on an allegation that a provision in the CBA unlawfully authorized retaliation for filing a workers compensation claim. That case was distinguishable, he contended, because the CBA here did not purport to authorize racial discrimination in promotions. Moreover, he noted that courts in several other circuits had expressly held that state law claims of race or national origin discrimination are not preempted by the LMRA. Furthermore, he argued, even if the court might have to look at the CBA in the course of deciding his case, that was not the same as having to interpret the CBA, not to speak of making the CBA so central to his claim as to cause it to be preempted.

The district court denied reconsideration of its finding of complete preemption. It stated that the CBA "governs" respondent's "exclusive, discretionary right to select, promote, demote, transfer or assign head cable splicers after consideration" of various factors, and that, consequently, even though the intentional infliction claim was based solely on the basis in racial discrimination, the element of extreme and outrageous conduct "implicates the[se] provisions of the CBA." Id. 9a. Accordingly, the Court stated, it would be necessary to interpret the CBA in order to decide petitioner's claim, and the claim was, therefore, preempted. Respondent then moved for summary judgment, and the district court, having already determined that the section 301 claim preempted the state law claim, dismissed petitioner's complaint as thus recharacterized because petitioner had not exhausted the grievance procedure under the CBA before filing his suit.

The court of appeals affirmed in a brief decision. It noted that, under Texas law, to establish his statutory discrimination claims petitioner would follow a burden-shifting scheme under which he could make out a prima facie by showing his protected status, adverse treatment, and dissimilar treatment from non-protected employees; respondent would then articulate a legitimate non-discriminatory reason for its actions; and petitioner would then have the burden of showing that the articulated reason was pretext. App. 2a-3a. However, the court observed, Reece's claim of discrimination "turns on questions of promotion, seniority and assignment to training programs, all of which are provided for in the CBA." Id. 3a. Because respondent would rely on the CBA to defend its conduct, the CBA would, the court assumed, inevitably have to be interpreted, and so this was a case where complete preemption resulted from the fact that "the interpretation of the CBA is made necessary by an employer defense." Id. (internal quotation marks and citation omitted).

Similarly, the court below concluded, petitioner's tortious discrimination claim required a showing of "extreme and outrageous conduct." The court opined, without any explanation, "[i]n order to evaluate whether [respondent]'s conduct was 'outrageous,' the conduct must be measured against the CBA." Id. The court below acknowledged that its decision conflicted with a line of cases in at least one other circuit. Thus, the Ninth Circuit had held in Ramirez v. Fox Television Station, 998 F.2d 743, 748 (1993), that no claims under California's employment discrimination statute were preempted. Nonetheless, the Fifth Circuit adhered to its position on the ground that it was "mandated" by Lingle. Id. 4a.

Review should be granted in this case for three reasons. First, the Fifth Circuit's analysis of section 301's preemptive scope is inconsistent with numerous decisions of this Court holding that independent state law claims are not preempted. Second, the decision below is squarely contrary to the holdings of several other lower courts, and indeed the lower courts continue to struggle to determine the extent to which they may consult a CBA in the course of adjudicating an employer's defenses without thereby preempting the employee's independent state law claim. Third, the assumption of federal subject matter jurisdiction on the ground that respondent's defenses to petitioner's state law claims would require consideration of the CBA is similarly contrary to decisions of this Court and of numerous other federal courts. In order to understand how far the lower court has strayed, it is necessary first to review this Court's rulings in the area.

1. This Court has held that all claims that seek to enforce a collective bargaining agreement arise under section 301 of the LMRA, even if the plaintiff purports to bring the claim under state law. Avco Corp. v. Machinists, 390 U.S. 557 (1968); Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962). In Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985), the Court ruled that an employee cannot avoid the preemptive effect of section 301 simply by using a tort label to describe a claim that, in effect, seeks to enforce duties created by a CBA.

But Allis-Chalmers also insisted that the mere fact that an employer has entered into a CBA governing its employees' terms and conditions of employment does not immunize the employer from claims seeking to enforce state law rights that are independent of any right established by contract. 471 U.S. at 212. Section 301 did not "give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation. Such a rule of law would delegate to unions and unionized employers the power to exempt themselves from whatever state labor standards they disfavored." Id. Nor must the state claim be completely unrelated to the CBA; it must only be "sufficiently independent of the CBA to withstand the pre-emptive force of § 301." IBEW v. Hechler, 481 U.S. 851, 859 (1987).

Lingle v. Norge, 486 U.S. 399 (1988), made clear the limits of the preemption doctrine enunciated in Allis-Chalmers, by holding that an employee's state law claim of retaliatory discharge is not preempted by the LMRA. Accord, Hawaii Airlines v. Norris, 114 S. Ct. 2239 (1994) (no preemption under Railway Labor Act ("RLA")). Some lower courts had understood Allis-Chalmers to stand for the proposition that any state law claim brought by a unionized employee was necessarily dependent on the CBA if there existed parallel rights in the CBA and a grievance procedure for enforcing them. In Lingle, the employee claimed that she had been fired for exercising her right to file a workers compensation claim, and the Court held that the mere existence of a CBA with an arbitration clause was not sufficient to preclude the states from providing an independent cause of action to employees who were terminated for a reason deemed by the state to be contrary to public policy. The Court held that state law tort claims are preempted only to the extent that they are dependent on the meaning of a CBA, and the fact that a CBA may contain a clause that provides rights parallel to the state claim does not make the state law claim "dependent" on the CBA. 486 U.S. at 408-410.

When the employee claims that the discharge was based on the exercise of the right to file a workers compensation claim, the Court ruled, there is no need to inquire into the meaning of the CBA, because either the employer proceeded with the alleged bad motive, in which case the employee prevails, or it did not, in which case the employee loses. The Court went on to observe that it was possible for a state law claim to require some reference to a CBA without being preempted:

[A]s a general proposition, a state-law claim may depend for its resolution upon both the interpretation of a CBA and a separate state-law analysis that does not turn on the agreement. In such a case, federal law would govern the interpretation of the agreement, but the state law analysis would not thereby be preempted.

486 U.S. at 413 n.12.

Similarly, in Hawaiian Airlines v. Norris, 114 S. Ct. 2239 (1994), an aircraft mechanic claimed that he had been fired for refusing to certify the safety of certain planes and for reporting his safety concerns to the Federal Aviation Administration; the airline claimed that he had properly been discharged for violating a provision of the CBA requiring mechanics to sign work records in connection with the work he performs, and that his claims and its defenses could only be pursued in arbitration under the RLA, which preempted state law. This Court held that the state law claims were not preempted, because the standard for preemption under the RLA is identical to the standard for preemption under the LMRA as articulated in Lingle. In this regard, the Court specifically rejected the employer's contention, based on Conrail v. RLEA, 491 U.S. 299 (1989), that a state law claim is preempted when the employer's action is "arguably justified" by a provision in the CBA. Id. at 2250. As the Court explained in Norris, the fact that a defense of arguable justification under the CBA may serve to distinguish between major and minor disputes under the RLA does not mean that the same test determines "the threshold question whether the dispute was subject to the RLA in the first place." Id. at 2251. And it would not be necessary to determine whether the employer violated the CBA in order to resolve state law retaliation claims, because those claims "require only the purely factual inquiry into any retaliatory motive of the employer." Id.

The same issue arose in Livadas v. Bradshaw, 114 S. Ct. 2068 (1994), where the employer contended that state law claims are necessarily preempted whenever an employer could identify some way in which a provision in the CBA could be relevant to the disposition of a state law claim. The Court acknowledged that there was substantial dispute among the lower courts about the application of the principles of Lingle and Lueck, and that there might be some cases where a genuine dispute could be implicated by state law claims even if the claims did not derive from the CBA. The Court found it unnecessary to decide whether it would be necessary to preempt such claims, on the one hand, or whether other means of accommodating the federal law interests could be found short of complete preemption, id. at 2078 n.18, because in Livadas there was no dispute about the CBA's meaning. "[W]hen the meaning of contract terms is not the subject of dispute, the bare fact that a [CBA] will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished." Id. at 2078.

Here, the employer did no more than point to a provision in the CBA that gave it broad discretion over the selection of persons to be promoted and over the allocation of training opportunities. There was no dispute about the meaning of these contract terms. And yet the court below allowed respondent's CBA-based defense to preempt petitioner's claim that the reason why he had been denied promotions and training was racial discrimination forbidden by state law. The conflict between the ruling of the Fifth Circuit and the consistently contrary decisions of the Court is the first reason why certiorari should be granted.

2. Second, as the court below readily acknowledged, its approach to preemption of discrimination and retaliation claims squarely conflicts with other appellate decisions. Indeed, with respect to class-based discrimination or retaliation claims, the Fifth Circuit stands virtually alone in its position that the mere need to examine a CBA causes the state law claim to be preempted. The Fifth Circuit so held in the case below, as it had previously done in Medrano v. Excel Corp., 985 F.2d 230 (5th Cir. 1993).⁽¹⁾

Every other court to consider the question in the context of race or sex discriminaton has found them to be indistinguishable from retaliation cases like Lingle and Norris. As the court below acknowledged, App. 4a, the Ninth Circuit takes a diametrically opposing position to it, refusing to preempt state law discrimination claims simply because the employer held up a CBA as a possible justification for its actions. E.g., Ramirez v. Fox Television Station, 998 F.2d 743 (1993):

The [CBA] may be crystal clear . . . but Fox nonetheless may have ignored the [CBA] or applied it to her in a discriminatory manner. Thus, reference to or consideration of the terms of a [CBA] is not the equivalent of interpreting the meaning of the terms. If it were, all discrimination actions brought be unionized employees would be preempted because the starting point for every case would have to be the agreement. Although the line between reference to and interpretation of an agreement may be somewhat hazy, merely referring to an agreement does not threaten the goal that prompted preemption -- the desire for uniform interpretation of labor contract terms.

Id. at 749. Accord, Kohl's Food Stores v. Hyland, 32 F.3d 1075, 1079 (7th Cir. 1994) (CBA may be consulted along with other factors without interpreting its terms and thus preempting state claim).

The Ninth Circuit has repeatedly denied employer attempts to use section 301 to preempt claims under a variety of state anti-discrimination laws.⁽²⁾

Numerous district courts in other circuits have reached the same conclusion.⁽³⁾ Because the issue often arises, as it did here, in the context of a motion to remand a case that was removed on grounds of complete preemption, which are nonappealable under 28 U.S.C. § 1447(c), such rulings are the final word in those districts. Moreover, appellate courts in several states have refused to preempt state discrimination claims simply because the employer claimed that the CBA supported its position.⁽⁴⁾ And several other courts of appeals, although not being presented with race or sex discrimination claims, have stated that such claims would not be preempted, because they present the factual question of motivation, not the meaning of the CBA.⁽⁵⁾

There is a good reason why most lower courts have refused to allow preemption in cases like this one: if the employer's CBA-based defenses are sufficient to preempt the discrimination claim here, they will always lead to preemption of both discrimination and retaliation cases, thus completely undercutting the anti-preemption holdings of Lingle, Norris, and Livadas, and contrary to the presumption giving the narrowest scope to any preemption of state law. See Medtronic, Inc. v. Lohr, No. 95-754, at 12-13 (June 26, 1996). This case thus presents the question whether an employer's mere invocation of the CBA as presenting a potential defense can serve to destroy a cause of action that a state has chosen to promulgate to protect its citizens.

In this case, petitioner claims that his employer withheld certain valuable job benefits from him because of his race, pointing to evidence that these benefits were routinely given to white employees and not to black employees similarly situated. The employer responded, as employers generally do, by contending that it had other, legitimate reasons for according the benefits to others but not petitioner. Whenever an employer has a CBA, the employer will, of course, contend -- as respondent did here -- that the CBA recognizes the legitimacy of the reasons it has given for its benefit distribution decisions. Under the decision below, the mere fact that the employer has asserted justifications based in the CBA is sufficient first to warrant removal to federal court, wresting the decisional power from the state's own courts, and then to extinguish the state's anti-discrimination policy, leaving the matter solely to the disposition of the union and the employer through the grievance procedure. Such a result is completely inconsistent with this Court's holdings in Lingle and its progeny. "It is, to say the least, difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct." Medtronic, Inc. v. Lohr, No. 95-754, at 15 (June 26, 1996) (plurality opinion).

The fact that petitioner has alleged his racial discrimination claim in the form of the tort of intentional infliction of emotional distress ("IIED") in addition to his claim under the Texase civil rights statute does not require the preemption of the tort claim. The lower courts are divided over the question whether IIED claims are preempted by section 301, with a single circuit often displaying a startling inconsistency of analysis. Not infrequently, a court will simply conclude that, because liability for IIED depends on a finding that the employer's behavior was outrageous and extreme, the entire circumstances of the workplace must be examined, including the rights and obligations of set forth in the CBA, thus requiring that the state claim be preempted. E.g., McCormick v. AT&T Technologies, 934 F.2d 1318 (4th Cir. 1993) (en banc). Such courts treat IIED claims as the working conditions equivalent of the bad faith denial of insurance benefits that this Court found preempted in Allis-Chalmers; they can, therefore, reach a conclusion of preemption, as the court below did, without a careful consideration of the specifics of the claim or of the factual context.⁽⁶⁾ Other courts have been willing to give more detailed treatment to the question of preemption, and find no preemption when they decide that the employer's alleged conduct was so outrageous, or concerned matters so extraneous to the specific CBA involved in the case, that nothing in the CBA could possibly justify the conduct if the allegations in the complaint are proved.⁽⁷⁾ As may be seen from the cases cited in the footnotes, a finding of no preemption is particularly likely where the tort is, as here, predicated on mistreatment based on race or gender.

We wish to emphasize that our point here is not that the preemption question was necessarily decided wrongly in any of the cases cited from other circuits. Rather, the reason why these cases are all over the map -- and why, in our judgment, employment law practitioners and employers alike find it very difficult to predict how the preemption issue will be resolved -- is that the lower courts do not understand just how far Lingle's non-preemption standard allows them to go in looking at a CBA where the claim is based on substantive state law.

This Court has, over the past few years, considered and rejected numerous petitions for certiorari from both sides in cases raising this question, although squarely deciding that in Norris and Livadas that the Lingle standard did apply in cases involvbing the railroad and airline industries ansd in cases involving wage claims. The question with which lower courts continue to grapple, however, is what the Lingle standard means in practice -- does an otherwise non-preempted case become preempted as soon as the employer raises a CBA-related defense to the state law claim? The widespread disagreement shows that the lower courts are struggling to apply the preemption rules established by this Court in Allis-Chalmers and Lingle. See Galvez v. Kuhn, 933 F.2d 773, 776 (9th Cir. 1991); Note, The Need for a New Approach to Federal Preemption of Union Members' State Claims, 99 Yale L.J. 209, -- (1989).

Both the lower courts and thousands of litigants need the Court's guidance on this question, and this case presents the question very cleanly in the context of race discrimination claims, whether presented as a statutory civil rights action or as a tort claim of outrageous conduct. Moreover, the context here shows that the decision below threatens to completely eviscerate the Lingle standard. The Court should therefore grant certiorari to establish the extent to which a CBA may be considered in a Lingle-type case.

3. There is another reason why review by this Court will be of great significance to the lower courts. Under the analysis of the Fifth Circuit, the mere invocation of a CBA entitles the employer to remove every state-law-based employee claim to federal court, thereby substantially increasing the workload of the federal courts and requiring all CBA-based preemption claims to be decided there. This approach is squarely contrary to this Court's opinion concerning removal of cases based on alleged preemption by section 301 in Caterpillar v. Williams, 482 U.S. 386 (1987), and to this Court's analysis of Caterpillar in Oklahoma Tax Commission v. Graham, 489 U.S. 838 (1989).

In Caterpillar, employees sued under state law to enforce contracts which, they alleged, were formed by Caterpillar's promises, made to them individually, that they would not be laid off if the plant were closed. Although this Court affirmed the holding that the case was improperly removed, it unanimously rejected the Ninth Circuit's reasoning. Id. at 391 n.4. The Court ruled that, even though a court must determine whether a plaintiff's complaint, properly pleaded, is based on federal or state law, the plaintiff may opt to avoid federal jurisdiction by exclusive reliance on state law. Id. at 392. Even the doctrine of complete preemption does not rob a plaintiff of this right, so long as the state law claim is not substantially dependent on a CBA. Thus, the Caterpillar plaintiffs asserted a breach of individual employment contracts, and even if they could also have asserted claims under the CBA, as masters of their complaint, they were free not to do so. Id. at 393. Because the complaint did not rely on a CBA, or even address the relationship between the individual contracts and the CBA, the claims did not arise under section 301, and the case was not removable based on the doctrine of complete preemption. Id. Even though Caterpillar was also arguing for preemption on the theory that the state law contract could not be enforced within the bargaining unit because of NLRA law, and the contract had to be construed in deciding the validity of that argument, that was still not enough to warrant removal:

[T]he presence of a federal question, even a section 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule . . .. [A] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated.

482 U.S. at 398-399 (emphasis in original).

This analysis was reaffirmed when the Court explained the significance of Caterpillar in Oklahoma Tax Commission, another removal case, although one not involving a CBA:

In Caterpillar, we ruled that application of the well-pleaded complaint rule defeated federal jurisdiction, and therefore removability, in a case in which the employees sued on personal state employment contracts. We refused to characterize these state law claims as arising under federal law even though an interpretation of the collective bargaining agreement might ultimately provide the employer a complete defense to the individual claims, and even though employee claims on the collective bargaining agreement would have been the subject of original federal jurisdiction.

489 U.S. at 841 (emphasis added).

Even before Oklahoma Tax Commission, the Tenth Circuit had followed Caterpillar by barring removal of state law claims based on the contention that they were waived in a CBA.⁽⁸⁾ The Sixth and Eighth Circuits have also held that the mere fact that, in addressing a defense based on an interpretation of a CBA, the state court might ultimately hold that a plaintiff's claim is preempted, does not warrant removal of that claim to federal court.⁽⁹⁾ District court decisions in other circuits have reached that conclusion as well.⁽¹⁰⁾ The Ninth Circuit, by contrast, has held that neither Caterpillar nor Oklahoma Tax Commission bars removal based on the invocation of the CBA as a defense to state law employment claims.⁽¹¹⁾

Because of the view of many courts that, whenever section 301 may preempt all or part of state law claims the case is removable to federal court, a most undesirable litigation dynamic is produced. Employers that have CBAs have every incentive to remove to federal court on grounds of section 301 preemption. They know that if they succeed in removing the case, the necessary result is that the entire case is preempted, and thus that they can defeat the state law claim, without even having to get into the details of the case and show that the CBA, as they contend it should be construed, actually does provide a defense to the case. Frequently, too, the employee-plaintiff's lawyer is a state court practitioner who rarely appears in federal court, thus adding to the employer's litigation advantage. And even if the case is remanded, it will be with the proviso that the state courts remain free to decide the preemption defense in the employer's favor. Removal is thus a no-lose proposition, and the result is that many more cases are imposed on the federal dockets (and an employee-plaintiff's litigation burdens become all the greater) than there ought to be. The Court should therefore grant certiorari in order to curtail this growing imposition on the federal courts, and to resolve the growing conflict among the lower courts about whether removal is proper.⁽¹²⁾

The petition for a writ of certiorari should be granted.

Respectfully submitted,
 
 

Paul Alan Levy

(Counsel of Record)

Alan B. Morrison

Public Citizen Litigation Group
 
 

Michael Scott Thomas
 

Attorneys for Petitioner

June 24, 1996

1. Some First Circuit cases suggest that that court may be closer to the Fifth Circuit in its hospitability to section 301 preemption claims. One enigmatic decision held that a state claim of discharge to prevent an employee form obtaining commissions was preempted becauise the CBA regulated the rates of pay, including commissions. Quesnel v. Prudential Ins. Co., 66 F.3d 8 (1995), and another holds that state law handicap discrimination claims are preempted by section 301. O'Brien v. Conrail, 972 F.2d 1 (1992). Although handicap cases may be distinguishable from other discrimination and retaliation cases because they involve questions of the central elements of a job and the avilability of reasonable accommodations, the majority rule remains that such claims are not preempted. E.g., Jimeno v. Mobil Oil Corp., 66 F.3d 1514 (9th Ciur. 1995); Martin-Marietta v. Maryland Comm. on Human Relations, 38 F.3d 1392, 1402 (4th Cir. 1994); Miller v. AT&T Network Systems, 850 F.2d 543 (9th Cir. 1988). The Sixth Circuit initially found preemption, McCall v. Chesapeake & Ohio Ry. Co., 844 F.2d 294, 302 (1988), but later decided en banc that these issues can be decided without undue consideration of the CBA. Smolarek v. Chrysler Corp., 879 F.2d 1326, 1334 (1989). Similarly, the Eighth Circuit initially held that state law handicap discrimination claims were preempted, Davis v. Johnson Controls, 21 F3d 866, 868 (1994), but six months later, in a case that did not even mention Davis and that is indeed difficult to reconcile with Davis, the same court held that a claim under the the same state's statute was not preempted. Taggart v. TWA, 40 F.3d 269, 274-275 (8th Cir. 1994).

2. E.g., Cook v. Lindsay Olive Growers, 911 F.2d 233, 240 (9th Cir. 1990) (religious discrimination claim not preempted); Jackson v. Southern California Gas Co., 881 F.2d 638, 641 (9th Cir. 1989) (race discrimination claim not preempted).

3. E.g., Knox v. Wheeling-Pittsburgh Steel Corp., 899 F. Supp. 1529, 1534-1535 (N.D.W.Va. 1995) (state-law claim of sex discrimination and sexual harassment not preempted); Carrington v. RCA Global Communications, 762 F. Supp. 632, 639-642 (D.N.J. 1991).

4. E.g., Commodore v. University Mech. Contr., 120 Wash.2d 120, 132-133, 839 P.2d 314, 320 (1992). See also Hatridge v. Day & Zimmerman, 789 S.W.2d 654 (Tex. App. -- Texarkana 1990) (race discrimination claim not preempted; no mention of defense based on CBA).

5. O'Brien v. Conrail, 972 F.2d 1, 6 (1st Cir. 1992); McCall v. Chesapeake, & Ohio Ry. Co., 844 F.2d 294, 302 (6th Cir. 1988); Lingle v. Norge, 823 F.2d 1031, 1046 n.17 (7th Cir. 1987), rev'd on other grounds, 486 U.S. 399 (1988).

6. E.g., Mock v. T.G.&Y. Stores, 971 F.2d 522, 530 (10th Cir. 1992), quoting Johnson v. Beatrice Foods Co., 921 F.2d 1015, 1020-1021 (10th Cir. 1990). Paradoxically, the Ninth Circuit, which sometimes gives case specific consideration to the ability of IIED claims to survive preemption, e.g., Galvez v. Kuhn, 933 F.2d 773, 779-780 (9th Cir. 1991), summarily determined in Miller v. AT&T Network Systems, 850 F.2d 543 (9th Cir. 1988), that an IIED claim that was litigated along with a non-preempted handicap discrimination claim, id. at 548-550, was nevertheless preempted because the outrageousness of the IIED claim could (but might not) depend on whether the behavior violated the CBA. Id. at 551. See also Jackson v. Southern California Gas Co., 881 F.2d 638, 645-646 (9th Cir. 1989) (dismissing as preempted an IIED claim based on the same conduct as a race discrimination claim that was not preempted).

7. E.g., Lightning v. Roadway Express, 60 F.3d 1551 (11th Cir. 1995) (intense verbal abuse); Jackson v. Kimel, 992 F.2d 1318 (4th Cir. 1993) (alleged sexual harassment); Milne Employee's Ass'n v. Sun Carriers, 960 F.2d 1401 (9th Cir. 1991) (IIED claim based on unfair termination preempted, IIED claim based on false representations of job security not preempted); Hanks v. General Motors, 906 F.2d 341 (8th Cir. 1990) (worker required to work with foreman indicted for molesting her daughter); Keehr v. Consolidated Freightways, 825 F.2d 133 (7th Cir. 1987) (worker alleged abusive and insulting language); Rasheed v. International Paper Co., 826 F. Supp. 1377, 644 (S.D. Ala. 1993) (racial discrimination). See also Commodore v. University Mech. Contr., 120 Wash.2d 120, 135-137, 839 P.2d 314, 321-322 (1992) (racial discrimination); Pikop v. Burlington Northern R. Co., 390 N.W.2d 743, 748-753 (Minn. 1986) (sexuual harassment and national origin discrimination). Cf. Nash v. AT&T Nassau Metals, 381 S.E.2d 206, 209 (S.C. 1989) (case by case evaluation of preemption required; claim at issue preempted because claim is abuse of contractual privileges).

8. Plumbers Local 57 v. Bechtel Power Corp., 834 F.2d 884, 889-890 (10th Cir. 1987).

9. Humphrey v. Sequentia, 58 F.3d 1238, 1244 (8th Cir. 1995); Tisdale v. Plumbers Local 704, 25 F.3d 1308, 1313-1314 (1994); Welch v. General Motors Corp., 922 F.2d 287, 291-292 (6th Cir. 1990); Smolarek v. Chrysler Corp., 879 F.2d 1326, 1333-1334 and n.3 (6th Cir. 1989) (en banc) (case remanded even though interpretation of CBA might show absence of discriminatory animus).

10. E.g., Miller v. Fairchild Industries, 668 F. Supp. 461, 467 (D. Md. 1987) (defendant claimed that supplemental CBA released all claims in connection with plant closing); Machinists Local 967 v. General Elec. Co., 713 F. Supp. 547, 554-555 (N.D.N.Y. 1989); Glass Molders v. Wickes Cos., 707 F. Supp. 174, 178 (D.N.J. 1989).

11. Stikes v. Chevron USA, 914 F.2d 1265, 1268-1269 (9th Cir. 1990).

12. We note that, in the lower courts, the case was litigated on the assumption that the questions of preemption by section 301, and federal jurisdiction warranting removal to federal court, were one and the same. On this theory, all cases in which section 301 preempts state law are removable, and hence the only significant question is whether there is, in fact, preemption. Petitioner did not specifically discuss whether preemption through defensive use of the CBA raises different issues of federal jurisdiction than does the issue of whether there is preemption of a claim based on the well-pleaded elements of the plaintiff's case.

However, because this issue goes to the question of subject matter jurisdiction it may be raised at any time, and petitioner is obligated to note the problem once found by his new Supreme Court counsel. Moreover, as we argue in text, the basic misconception on the issue of jurisdiction that was shared by the parties and the courts below is widespread, and has forced the federal courts to take jurisdiction of numerous cases in which the preemption question would better be resolved in the state courts if there is an actual need to examine the CBA in litigation of the claims and defenses that are being raised.

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