Burgos v. Southwestern Bell Telephone Co., No. 93-8424

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation20 F.3d 633
Decision Date11 May 1994
Docket NumberNo. 93-8424
Parties146 L.R.R.M. (BNA) 2426, 128 Lab.Cas. P 11,088 Patricia BURGOS, et al., Plaintiffs-Appellants, v. SOUTHWESTERN BELL TELEPHONE CO., Defendant-Appellee.

Page 633

20 F.3d 633
146 L.R.R.M. (BNA) 2426, 128 Lab.Cas. P 11,088
Patricia BURGOS, et al., Plaintiffs-Appellants,
v.
SOUTHWESTERN BELL TELEPHONE CO., Defendant-Appellee.
No. 93-8424.
United States Court of Appeals,
Fifth Circuit.
May 11, 1994.

Lauren K.S. Murdoch, Lubbock, TX, Thomas E. Stanton, El Paso, TX, for appellants.

William A. Brown, Southwestern Bell Telephone, Dallas, TX, for appellee.

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

Before ALDISERT *, REYNALDO G. GARZA and DUHE, Circuit Judges.

PER CURIAM:

The Burgos family appeals the district court's grant of summary judgment in favor of Southwestern Bell Telephone Co. on the

Page 634

basis that section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. Secs. 141-187, preempts their intentional infliction of emotional distress claim. Finding no error, we AFFIRM.

I. FACTS

Oscar Burgos was employed by Southwestern Bell Telephone Co. ("Southwestern Bell") for over nineteen years. In 1989, Burgos was a non-management employee with the title Communications Technician. He was a member of the labor organization Communications Workers of America, which was a party to a collective bargaining agreement with Southwestern Bell. The agreement covered the conditions of employment of Burgos and other employees similarly situated. In August, 1989, Burgos was found to be suffering from a heart condition known as idiopathic, congestive cardiomyopathy. After a period of hospitalization, he recovered sufficiently to return to work in October, 1989, on a restricted basis, the restriction being that he was forbidden to lift anything heavier than twenty-five pounds. With this restriction, Burgos was apparently able to perform the duties of a Communications Technician, at least for a few months. He was assigned to a group known as the Special Services Group.

In March, 1990, Southwestern Bell made a management decision to transfer the work being done by the Special Services Group in El Paso to the Dallas office. Under the collective bargaining agreement then in effect, Burgos had three options: (1) move to Dallas with the Special Services Group; (2) seek and obtain another position with the company in El Paso, or (3) take termination, which entitled the employee to a termination allowance. Burgos advised the company that his doctor advised him not to move to Dallas with the Special Services Group. Rather than taking termination, he decided to apply for another position with the company in El Paso. Pursuant to the Job Vacancy Article of the collective bargaining agreement, Burgos took four tests to determine his qualifications for alternative positions within Southwestern Bell. He failed all four tests, which the appellants specifically attribute to his worsening medical condition.

On July 7, 1990, a position became available in network switching and Burgos was placed in this position. Although his title of Communications Technician continued, his duties were changed significantly. He was sent to Dallas to attend a course in electronic switching known as the "511A Training Course." Burgos proceeded to fail a segment of this course, and he was deemed by Southwestern Bell to have failed the entire course. As a result, he was "retreated" back to El Paso to his former position in Special Services. His continued efforts to obtain a new position with Southwestern Bell in El Paso were unsuccessful. Finally, on August 17, 1990, Burgos notified Southwestern Bell that he would take termination. Accordingly, his employment was terminated and he received termination pay of about $30,000.00. After this, his heart condition worsened, and he was hospitalized. On October 3, 1990, Burgos died while awaiting a heart transplant.

II. PROCEDURAL HISTORY

The widow and children of the deceased, Oscar Burgos, brought a civil action in the El Paso County Court, alleging negligence, breach of contract, and intentional infliction of emotional distress. Southwestern Bell filed a notice of removal to the Western District of Texas on the basis of diversity of citizenship and federal question. The Burgos family abandoned all claims except for their intentional infliction of emotional distress claim. The district court granted summary judgment in favor of Southwestern Bell on the basis that section 301 of the LMRA preempted the Burgos family's tort claim. The Burgos timely appealed to this...

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80 practice notes
  • P. Bordages-Account B, L.P. v. Air Products, L.P., No. CIV.A.1:04-CV-128.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • August 23, 2004
    ...471 (5th Cir.2001); Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir.1999); Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir.1994). "An issue is `genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan, 246 F.3d ......
  • Abu-Awad v. U.S., No. Civ.A. H-02-2068.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 14, 2003
    ...Cir.2001) (emphasis in original) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Burgos v. Southwestern Page 884 Bell Tel. Co., 20 F.3d 633, 635 (5th Cir. 1994). "An issue is `genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan, 246 F.3......
  • TRUSTEES OF PLMRS. & PIPFTRS. PEN. v. Mar-Len, Inc., No. 1:93-CV-550
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • September 12, 1994
    ...non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Id.; Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th III. DISCUSSION A. Enforcement of the Arbitration Award Plaintiffs ask this court to grant summary judgment on Count I to enforce ......
  • Entertainment by J & J Inc. v. Al-Waha Enterprises, Civil Action No. H-01-2514.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • July 25, 2002
    ...(1998). A material fact is one that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir.1994). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non......
  • Request a trial to view additional results
83 cases
  • P. Bordages-Account B, L.P. v. Air Products, L.P., No. CIV.A.1:04-CV-128.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • August 23, 2004
    ...471 (5th Cir.2001); Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir.1999); Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir.1994). "An issue is `genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan, 246 F.3d ......
  • Abu-Awad v. U.S., No. Civ.A. H-02-2068.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 14, 2003
    ...Cir.2001) (emphasis in original) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Burgos v. Southwestern Page 884 Bell Tel. Co., 20 F.3d 633, 635 (5th Cir. 1994). "An issue is `genuine' if it is real and substantial, as opposed to merely formal, pretended, or a sham." Bazan, 246 F.3......
  • TRUSTEES OF PLMRS. & PIPFTRS. PEN. v. Mar-Len, Inc., No. 1:93-CV-550
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • September 12, 1994
    ...non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Id.; Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th III. DISCUSSION A. Enforcement of the Arbitration Award Plaintiffs ask this court to grant summary judgment on Count I to enforce ......
  • Entertainment by J & J Inc. v. Al-Waha Enterprises, Civil Action No. H-01-2514.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • July 25, 2002
    ...(1998). A material fact is one that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir.1994). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non......
  • Request a trial to view additional results

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