Romero v. MASON AND HANGER-SILAS MASON CO., INC.

• Decision Date: 17 May 1990
• Docket Number: No. CIV 89-1274-SC.,CIV 89-1274-SC.
• Citation: 739 F. Supp. 1472
• Parties: Bianca ROMERO, Plaintiff, v. MASON AND HANGER-SILAS MASON COMPANY, INC., a Kentucky Corporation, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

739 F. Supp. 1472

Bianca ROMERO, Plaintiff, v. MASON AND HANGER-SILAS MASON COMPANY, INC., a Kentucky Corporation, et al., Defendants.

No. CIV 89-1274-SC.

United States District Court, D. New Mexico.

May 17, 1990.

Richard Rosenstock, and Asenath Kepler, Santa Fe, N.M., for plaintiff.

George Cherpelis, Timothy L. Salazar, Peggy A. Hardwick, Cherpelis Vogel and Salazar, Albuquerque, N.M., for defendants.

MEMORANDUM OPINION AND ORDER

CAMPOS, District Judge.

This case is before the Court on a Motion to Remand filed by Plaintiff. For the reasons contained in this Opinion, the Motion will be granted and the case will be remanded to state court.

On October 10, 1989 Plaintiff filed her complaint in Rio Arriba County District Court against her former employer, Defendant Mason and Hanger-Silas Mason Company, Inc. ("Mason and Hanger"), and three of her supervisors, Defendants Tommy Hook ("Hook"), Leonard Carter ("Carter") and Robert Everhart ("Everhart"). Mason and Hanger provides security services to Los Alamos National Laboratory ("LANL"). Plaintiff was employed as a security inspector by Mason and Hanger at LANL. Plaintiff's Complaint alleges that in 1985 she was subjected to what she believed to be sex harassment by a male supervisory official and filed a complaint about this with Hook. She thought her complaint was not adequately handled and verbally complained further about that. Subsequently, she alleges that she was subjected to a three year campaign of harassment by various male supervisors which was ratified by the Defendants. Plaintiff alleges further that during the summer of 1988 Plaintiff sent a memorandum to Defendants regarding a male supervisor who had engaged in conduct regarding the assignment of personnel which she felt was incompetent and placed the security of LANL and the inspectors on duty in danger. She asked Everhart to take corrective action, but she alleges that instead, in retaliation for having alleged a breach of security, for having sought an investigation into that incident, and as part of the long standing campaign of retaliatory harassment directed against her since the time she complained of sexual harassment in 1985, she was terminated in August 1988. Allegedly the reasons proffered by the Defendants to justify her termination were pretext designed to conceal the retaliatory animus behind the decision.

Plaintiff has alleged three causes of action: intentional infliction of emotional distress; wrongful or retaliatory discharge; and intentional interference with contractual relations. She alleges damages for aggravation of a pre-existing ulcer condition causing pain and suffering, severe emotional distress, embarrassment and humiliation, as well as economic loss in the form of lost wages and benefits, impaired earning capacity, and so forth.

On November 16, 1989 Defendants timely removed Plaintiff's Complaint pursuant to 28 U.S.C. §§ 1441(a) and (b) and 1446. The grounds for removal were stated as follows:

As an employee of Mason and Hanger, the plaintiff was subject to a collective bargaining agreement containing a grievance and arbitration procedure covering discharge from employment. The grievance and arbitration procedure culminates in final and binding arbitration. Actions seeking damages on loss of employment from a position covered by the collective bargaining agreement are subject to the exclusive jurisdiction of the federal court system, and plaintiff's claim for loss of employment is completely preempted by the Labor Management Relations Act.

Notice of Removal, ¶ 4. Defendants allege this Court has jurisdiction under 29 U.S.C. § 185. This is known as § 301 of the Labor Management Relations Act of 1947 ("§ 301"), 61 Stat. 156, which provides in pertinent part:

Suits for violations 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 of the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a).

Plaintiff was subject to the terms of a collective bargaining agreement between Mason and Hanger and the union.¹ The agreement at Article 4(b)(2) gives Mason and Hanger the right "to discharge employees for just cause." Following her termination, Plaintiff filed a union grievance pursuant to Article 7 of the agreement which was denied by Mason and Hanger apparently on procedural grounds.

Defendants assert that Plaintiff's state law claims are subject to complete preemption under § 301. The United States Supreme Court recently discussed the propriety of removal of state law claims pursuant to § 301. Caterpillar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). The Court described the issue as:

whether respondents' state law complaint for breach of individual employment contracts is completely pre-empted by § 301 ... and therefore removable to Federal District Court.

Id. at 388, 107 S.Ct. at 2427. The Court outlined the removal analysis. The case must be one that could have been filed in federal court. If diversity is lacking, there must be a federal question presented on the face of the well-pleaded complaint. This "well-pleaded complaint rule" makes the plaintiff the master of the claim. By exclusive reliance on state law, the plaintiff can avoid federal jurisdiction. Id. at 392, 107 S.Ct. at 2429.

Federal preemption ordinarily is raised as a defense to a complaint and does not convert a state claim into a federal one, and such a case is not removable to federal court. Id. at 392-93, 107 S.Ct. at 2429-2430. However a "corollary", known as the "complete preemption doctrine," exists:

On occasion, the Court has concluded that the preemptive force of a statute is so `extraordinary' that it `converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.' citation omitted Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. citation omitted

The complete pre-emption corollary to the well-pleaded complaint rule is applied primarily in cases raising claims pre-empted by § 301 of the LMRA....

Id. at 393, 107 S.Ct. at 2430. When such a claim is stated, the case is removable to federal court irrespective of whether the federal claim appears on the face of the complaint. Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 560, 88 S.Ct. 1235, 1237, 20 L.Ed.2d 126 (1968); Local No. 57 v. Bechtel Power Corp., 834 F.2d 884, 886 (10th Cir.1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988).

Not all state law claims brought by unionized employees against their employers are completely preempted by § 301 and transformed into federal claims. The Court must look at whether the claims are "founded directly on rights created by collective-bargaining agreements," Caterpillar, Inc. 482 U.S. at 394, 107 S.Ct. at 2431, or "substantially dependent on analysis of a collective-bargaining agreement." Id., quoting Electrical Workers v. Hechler, 481 U.S. 851, 859, n. 3, 107 S.Ct. 2161, 2166, n. 3, 95 L.Ed.2d 791 (1987); see also, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1915, 85 L.Ed.2d 206 (1985). If so, the case is removable to federal court. However, if a plaintiff asserts state-created legal rights that exist independently of a labor agreement and plaintiff's claims do not rely on the provisions of a collective bargaining agreement, then complete preemption does not apply to the claims and they should be remanded to the state court. See Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 407, 108 S.Ct. 1877, 1882, 100 L.Ed.2d 410 (1988) (state law claim for retaliatory discharge independent of collective bargaining agreement, no preemption). The mere fact that a plaintiff could or even did bring a claim under § 301 or file a grievance under the union agreement will not necessarily preempt a separate state tort or contract action in state court. Caterpillar, Inc., supra, 482 U.S. at 394-95, 107 S.Ct. at 2430-31; Lingle, 486 U.S. at 409-10, 108 S.Ct. at 1883-84; Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 564-66, 107 S.Ct. 1410, 1415-16, 94 L.Ed.2d 563 (1987).

WRONGFUL OR RETALIATORY DISCHARGE CLAIM.

Plaintiff alleges she was fired wrongfully and in retaliation for complaining about safety violations and about sexual harassment. New Mexico recognizes this cause of action where an employee has been discharged in retaliation for doing something that public policy encourages. Vigil v. Arzola, 102 N.M. 682, 686-90, 699 P.2d 613, 617-21 (1983), rev'd on other grounds, 101 N.M. 687, 687 P.2d 1038 (1984); Chavez v. Manville Products Corp., 108 N.M. 643, 777 P.2d 371, 375 (1989).

In Lingle, the Supreme Court held a claim for retaliatory discharge under Illinois law was not preempted by § 301. The elements of the tort did not require the trier of fact to interpret any term of a collective bargaining agreement.

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 citation omitted; 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 that matters for § 301 preemption purposes: resolution of the state-law claim does not require construing the collective-bargaining agreement.

Lingle, 486 U.S. at 407, 108 S.Ct. at 1882....