Jones v. Roadway Exp., Inc., 90-5606

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation931 F.2d 1086
Docket NumberNo. 90-5606,90-5606
Parties137 L.R.R.M. (BNA) 2619, 60 USLW 2048, 119 Lab.Cas. P 10,805, 6 Indiv.Empl.Rts.Cas. 980 William JONES, Plaintiff-Appellant, v. ROADWAY EXPRESS, INC., Defendant-Appellee.
Decision Date29 May 1991
Opinion on Denial of Rehearing

July 16, 1991.

Larry R. Daves, San Antonio, Tex., for plaintiff-appellant.

Shelton E. Padgett, Kris J. Bird, Akin, Gump, Strauss, Haver & Feld, San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District Court of Texas.

Before BROWN, JOHNSON and WIENER, Circuit Judges.

WIENER, Circuit Judge:

In this retaliatory discharge case, which originated in state court and was removed to federal district court on the basis of diversity of citizenship and federal question jurisdiction, the Plaintiff-Appellant, William Jones, appeals the order of the district court granting summary judgment in favor of Defendant-Appellee, Roadway Express, Inc. The district court held that, because arbitration under the terms of a collective bargaining agreement (CBA) resulted in a final binding decision, the Texas election-of-remedies doctrine barred Jones' claim, pursuant to article 8307c of the Revised Civil Statutes of the State of Texas, for retaliatory discharge in anticipation of his filing a claim for workers' compensation benefits. Because we find error in the district court's judgment, we reverse, and we remand with instructions to vacate the judgment and remand to state court.

I OPERABLE FACTS AND PROCEEDINGS BELOW

Jones was employed as a truckdriver for Roadway from 1972 until 1988 under the terms of a CBA between Roadway and the International Brotherhood of Teamsters (Teamsters). Jones left work after injuring his back in 1981 and did not return until 1986. In November 1987 Jones was discharged for failing to protect his bids, i.e., failing to work on an assignment which Roadway had scheduled and for which the drivers had bid based on their seniority. The grievance committee established under the CBA later reduced his discharge to ten days. Jones reinjured his back on January 26, 1988, and was forced to miss work for a few weeks in February 1988. Roadway issued a written warning to Jones that he would be dismissed if he failed to work the assignments on which he had bid. On February 26, 1988, Jones phoned to say that he could not work that evening on an assignment on which he had bid. Roadway fired him by letter dated February 26th.

Jones then filed a grievance under the CBA, a grievance which did not include his article 8307c claim for retaliatory discharge. The grievance committee denied his grievance on April 18, 1988. Jones filed a workers' compensation claim on June 13, 1988, and brought this lawsuit on August 13, 1988, in state court. Roadway had the case removed to federal court on the basis of both diversity and federal question jurisdiction. As a basis for the latter it alleged that section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185, preempted Jones' claims. Jones moved to remand the case to state court as a nonremovable action under section 1445(c) of Title 28 of the United States Code. On May 18, 1989, the court denied Jones' motion. The court stated that Jones had explicitly stated a claim of retaliatory discharge under article 8307c, but had only implied two claims under the CBA. The court, consequently, required Jones to amend his pleadings to enable it to determine whether his In the meantime, on January 12, 1989, Roadway had filed a motion for summary judgment. Jones, in his response to Roadway's supplement to its motion for summary judgment, seemed to resurrect his section 301 unfair representation claim. But his attitude to this latter claim was equivocal: he declared he was electing not to pursue the unfair representation claim, but insisted that he was not abandoning it either. On June 26, 1990, the district court granted summary judgment in Roadway's favor, dismissing Jones' lawsuit. The court concluded that Jones had opted to pursue his allegations to a final decision in grievance rather than in judicial proceedings. Under the Texas election-of-remedies doctrine, his choice of remedies now barred him, declared the district court, from pursuing an alternative remedy.

state law claims were preempted. Jones amended his complaint to assert solely a cause of action under article 8307c.

The district court noted that if Jones were still alleging that Roadway had breached the CBA and that his union had breached its duty of fair representation, he would be bringing a hybrid claim which federal law would preempt. But the district court found that Jones had expressly withdrawn his section 301 allegations and was instead reasserting his article 8307c claim. The court then held that the Texas election-of-remedies doctrine foreclosed this claim absent an allegation of a breach of the duty of fair representation--an allegation that Jones had expressly withdrawn. Jones' notice of appeal was timely filed.

II DISCUSSION
A. Summary Judgment

We will affirm a grant of summary judgment if no genuine issues of material fact exist and if the defendants are entitled to judgment as a matter of law. See Randolph v. Laeisz, 896 F.2d 964, 969 (5th Cir.1990) (citing Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir.1989); Moore v. Mississippi Valley State Univ., 871 F.2d 545, 548 (5th Cir.1989)). We must first decide whether the district court was correct in concluding that the election-of-remedies doctrine barred Jones' 8307c suit. We "review de novo a district court's determination of state law" without deference to the district court. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991); Allison v. ITE Imperial Corp., 928 F.2d 137, 138 (5th Cir.1991).

B. Election of Remedies

In concluding that the Texas election-of-remedies doctrine barred Jones from pursuing his retaliatory discharge claim in judicial proceedings, the district court relied on Thompson v. Monsanto Co., 559 S.W.2d 873 (Tex.Civ.App.1977), and on the Texas Supreme Court cases which had restricted that decision, Richards v. Hughes Tool Co., 615 S.W.2d 196 (Tex.1981), cert. denied, 456 U.S. 991, 102 S.Ct. 2272, 73 L.Ed.2d 1286 (1982); Spainhouer v. Western Elec. Co., 615 S.W.2d 190 (Tex.1981); and Carnation Co. v. Borner, 610 S.W.2d 450 (Tex.1980). The Texas Supreme Court had restricted the Monsanto holding that an article 8307c suit is barred to only those cases in which "a final settlement or determination" has occurred under the union grievance proceedings as set out in the CBA. Richards, 615 S.W.2d at 197.

Recently, however, the Texas Supreme Court has explicitly "disapprove[d] of the holding in Monsanto." International Union v. Johnson Controls, Inc., 786 S.W.2d 265, 265 (Tex.1990). The court held that an arbitration decision pursuant to a CBA does not preempt an action under the Texas Workers' Compensation Act. Id. The court reasoned that Monsanto conflicted with Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), and with Ruiz v. Miller Curtain Co., 702 S.W.2d 183 (Tex.1985), cert. denied, 478 U.S. 1004, 106 S.Ct. 3295, 92 L.Ed.2d 710 (1986). Id. In Lingle, the United States Supreme Court held that state causes of action concerning labor disputes are permissible when such suits do not involve interpreting collective bargaining agreements. Id. (citing Lingle, 486 Given the decision of the Texas Supreme Court in Johnson Controls, we hold that the adverse arbitration decision does not bar Jones' article 8307c suit. Consequently, we must next decide whether federal law, specifically section 301 of the LMRA, 29 U.S.C. Sec. 185(a), preempts Jones' state-law claim of retaliatory discharge in anticipation of his filing a workers' compensation claim, Tex.Rev.Civ.Stat.Ann. art. 8307c.

                U.S. at 411, 108 S.Ct. at 1884, 100 L.Ed.2d at 422).    In Ruiz, the Texas Supreme Court held that federal law does not preempt a cause of action under article 8307c.  Id. (citing Ruiz, 702 S.W.2d at 185)
                
C. Preemption

Section 301 of the LMRA states:

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

29 U.S.C. Sec. 185(a). The Supreme Court in Lingle held that section 301 preempts an application of state law "only if such application requires the interpretation of a collective-bargaining agreement." Lingle, 486 U.S. at 413, 108 S.Ct. at 1885, 100 L.Ed.2d at 423. Congress did not intend that section 301 should preempt "state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 219, 105 S.Ct. 1904, 1915, 85 L.Ed.2d 206 (1985). Even when, as in this case, a CBA provides a remedy for a retaliatory discharge that may also violate state law, "the existence or the contours of the state-law violation" need not depend upon the terms of the CBA. Lingle, 486 U.S. at 412-13, 108 S.Ct. at 1884-85, 100 L.Ed.2d at 423. That the state court would have to decide precisely the same issue and analyze the same facts as would the arbitrator does not matter so long as resolving the state-law claim without interpreting the CBA is possible. See id. at 410, 108 S.Ct. at 1883, 100 L.Ed.2d at 421. The Court noted that in a typical case involving, for instance, "just cause" for discharge, a state court could resolve a discrimination or retaliatory discharge claim without interpreting the "just cause" language of the CBA. Id. at 413, 108 S.Ct. at 1885, 100 L.Ed. at 423. In such instances, the state-law claim is "independent...

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