Brown v. Southwestern Bell Telephone Co.

• Decision Date: 24 May 1990
• Docket Number: No. 89-1768,89-1768
• Citation: 901 F.2d 1250
• Parties: 134 L.R.R.M. (BNA) 2363, 115 Lab.Cas. P 10,081, 5 Indiv.Empl.Rts.Cas. 655 C. Richard BROWN and Karen Brown, Plaintiffs-Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, James G. Bryan, and Keith Dendy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1250

901 F.2d 1250

134 L.R.R.M. (BNA) 2363, 115 Lab.Cas. P 10,081,

5 Indiv.Empl.Rts.Cas. 655

C. Richard BROWN and Karen Brown, Plaintiffs-Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, James G. Bryan, and Keith Dendy, Defendants-Appellees.

No. 89-1768.

United States Court of Appeals Fifth Circuit.

May 24, 1990.

Rehearing Denied June 22, 1990.

John Judge, Amarillo, Tex., for plaintiffs-appellants.

Diane M. Henson, Graves, Dougherty, Hearon & Moody, Austin, Tex., for defendants-appellees.

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

Before CLARK, Chief Judge, WISDOM and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

C. Richard Brown, a long-time employee of Southwestern Bell Telephone Company ("Southwestern Bell"), was denied the disability benefits he sought pursuant to the company's employee benefit plan and was terminated when he failed to return to work as directed by his supervisors, James G. Bryan and Keith Dendy. Brown and his wife then filed suit in Texas state court against Southwestern Bell, Bryan, and Dendy, asserting a panoply of tort and contract claims, all arising from the denial of Brown's disability benefits and from his subsequent discharge. Defendants removed the case to federal district court, basing jurisdiction upon the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Secs. 1001-1461, and the Labor Management Relations Act ("LMRA"), 29 U.S.C. Secs. 141-187, and successfully moved for summary judgment on each of Brown's claims. Finding no reversible error, we affirm.

I.

The relevant facts are not in dispute. Brown's twenty-eight-year career with Southwestern Bell ended on September 8, 1987, when he was discharged for failing to return to work from a long absence as directed by Bryan and Dendy. For some time prior to his termination, Brown had suffered from a chronic back condition stemming from an old injury. A series of operations in 1982 and 1983 had failed to remedy Brown's condition, and he frequently missed work complaining of back pain. ¹

By the spring of 1987, Brown's pain allegedly had worsened significantly. He consulted several physicians and eventually was referred to a neurologist, Dr. William Gordon. On June 2, 1987, Gordon performed a myelogram and diagnosed Brown's condition as "post operative lumbar disc disease with chronic sciatica." In a report dated June 6, Gordon informed Southwestern Bell's Benefit Committee ² that Brown was not disabled and could return to work after recuperating from the myelogram so long as he was not required to perform any "heavy lifting, bending, or prolonged sitting." On June 9, the Benefit Committee authorized the payment of temporary disability benefits to Brown but explained that an additional physician's report would be required should Brown wish to continue receiving payments after June 16.

On June 15, Gordon submitted an additional report to the Benefit Committee, stating that Brown was now completely disabled from any type of employment and was restricted to "no standing, sitting, or lifting." Moreover, the report indicated that Brown's prognosis was poor. In Gordon's words, he anticipated no "improvement in [Brown's] condition that would allow him to ever return to full duty employment. At this time, ... [Brown] is totally and permanently disabled."

After receiving the June 15 report, the Benefit Committee referred Brown's file to Dr. Paul Gorsuch, who served as a medical advisor to Southwestern Bell. Puzzled by the marked discrepancy between the June 6 and June 15 reports, Gorsuch asked Gordon to consider the fact that Brown's position as a maintenance administrator ³ required no manual labor and to explain in more detail his reasons for concluding that Brown was totally and permanently disabled from performing that job.

Unsatisfied by Gordon's response, Gorsuch sought a second opinion from another neurologist, Dr. Lloyd Garland. After examining Brown, Garland determined that although he was partially disabled, he nevertheless was capable of performing his job duties. Accordingly, the Benefit Committee denied Brown's request for long-term disability benefits.

Brown returned to his job for a brief period in August but complained that he suffered severe pain while at work. On August 24, Brown did not report to work. A representative from the Communication Workers of America (CWA) informed Dendy that Brown had suffered a relapse and would remain away from work indefinitely on the advice of his doctor. Brown then filed a claim for additional disability benefits, and Gordon submitted a report stating that Brown was completely disabled as a result of severe and constant pain in his back, hips, left leg, and shoulders. Gorsuch informed the Benefit Committee that he disagreed with Gordon's evaluation, and Brown's claim was denied on September 1. ⁴

On September 3, Brown's supervisors, Bryan and Dendy, visited him at his home. They informed Brown that the Benefit Committee had denied his claim and that Southwestern Bell regarded his most recent absences as unexcused. In addition, they warned Brown that if he failed to return to work by September 8, he would be discharged. When Brown did not report to work on that date, he was terminated for "job abandonment."

In November 1987, Brown and his wife filed suit in Texas state court against Southwestern Bell, Bryan, and Dendy, ⁵ alleging, inter alia, wrongful termination, wrongful refusal to pay disability benefits, breach of fiduciary duty, negligence, conspiracy, and intentional infliction of emotional distress. The essence of the emotional distress claim was that Southwestern Bell, by informing Brown that he would lose his job if he did not return to work, had put him to a choice "between his doctor and his job." Such a choice, Brown argued, was a dilemma to which "no reasonable person in a civilized society should be subjected," and by requiring him to make it, Southwestern Bell had engaged in "extreme and outrageous conduct."

Southwestern Bell removed the case, asserting that even though Brown's complaint purported to raise only state law claims, it in fact was governed by federal law. Insofar as Brown's claims arose out of the denial of disability benefits, Southwestern Bell maintained, they were governed by ERISA, and insofar as they arose out of his termination, they were governed by the LMRA. ⁶ Brown did not seek a remand at that time, and the parties proceeded with discovery.

In November 1988, Southwestern Bell moved for summary judgment as to each of Brown's claims, contending that they were preempted by ERISA and the LMRA. ⁷ Brown responded to the motion by conceding that it should be granted except as to his claim for intentional infliction of emotional distress. That claim, he argued, was not preempted and should be remanded.

In July 1989, the district court denied Brown's motion to remand and entered summary judgment in favor of Southwestern Bell, concluding that the emotional distress claim arose out of the denial of Brown's disability benefits and therefore was preempted by ERISA. On appeal, Brown argues that the emotional distress claim should have been remanded and, in the alternative, that summary judgment on that claim was improper.

II.

In maintaining that the district court lacked jurisdiction to entertain his emotional distress claim, Brown does not explicitly contest the propriety of the initial removal. Instead, he asserts that his claim for intentional infliction of emotional distress, unlike his other state law causes of action, is saved from federal preemption by the rule announced in Farmer v. United Bhd. of Carpenters & Joiners of Am., 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977). Thus, Brown argues, when the preempted claims were resolved and only the allegedly non-preempted claim remained, federal jurisdiction was extinguished, and the district court was obligated to remand the case.

We address the merits of the preemption issue below. But assuming arguendo that Brown's claim for intentional infliction of emotional distress is not preempted, we nevertheless conclude that the district court acted properly in retaining it.

When a defendant seeks to remove a case, the question of whether jurisdiction exists is resolved by looking at the complaint at the time the petition for removal is filed. See Pullman Co. v. Jenkins, 305 U.S. 534, 537-38, 59 S.Ct. 347, 348-49, 83 L.Ed. 334 (1939). Thus, when there is a subsequent narrowing of the issues such that the federal claims are eliminated and only pendent state claims remain, federal jurisdiction is not extinguished. Instead, the decision as to whether to retain the pendent claims lies within the sound discretion of the district court. See In re Carter, 618 F.2d 1093, 1101 (5th Cir.1980), cert. denied, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981).

A close look at Brown's complaint reveals that removal was proper. Although Brown initially sought relief under a number of common law theories, the essence of his complaint was that he was discharged without just cause in violation of the collective bargaining agreement and that his claim for ERISA benefits was wrongly denied. It is well settled that both sorts of claims, no matter how characterized by the plaintiff, in fact are "necessarily federal in character by virtue of the clearly manifested intent of Congress." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 67, 107 S.Ct. 1542, 1548, 95 L.Ed.2d 55 (1987). ⁸ Thus, Brown's complaint arose under federal law and was removable to federal court pursuant to 28 U.S.C. Sec. 1441(b).

Having concluded that removal was proper, we now address whether the district court abused its discretion in retaining the intentional infliction of emotional distress claim. In Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 618, 98 L.Ed.2d 720 (1988), the Court discussed the considerations that should guide federal...