Dancy v. Fina Oil & Chemical Co.

• Decision Date: 22 March 1996
• Docket Number: No. 1:96-CV 0196.,1:96-CV 0196.
• Citation: 921 F. Supp. 1532
• Parties: Herman R. DANCY, Jr., et al., Plaintiffs v. FINA OIL & CHEMICAL COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Texas

921 F. Supp. 1532

Herman R. DANCY, Jr., et al., Plaintiffs v. FINA OIL & CHEMICAL COMPANY, Defendant.

No. 1:96-CV 0196.

United States District Court, E.D. Texas, Beaumont Division.

March 22, 1996.

Jill Swearingen-Chatelain, Provost & Umphrey, Beaumont, TX, for plaintiffs.

Durwood Douglas Crawford, Goins Underkofler Crawford & Landon, Dallas, TX, for defendant.

MEMORANDUM OPINION

COBB, District Judge.

The Plaintiffs in this case originally filed suit against the Defendant in the 136th Judicial District, Jefferson County, Texas, alleging damages resulting from Fina's issuance of "Letters of Concern" ("letters") pursuant to an employee absenteeism program. The Plaintiffs argue that the publication of a list of all employees receiving such letters resulted in damages. Plaintiffs seek damages from the Defendant for intentional infliction of emotional distress and invasion of privacy. Defendants timely removed to this court on the basis of preemption under § 301 of the Labor Management Relations Act ("§ 301" and "LMRA"). This Court finds that Plaintiffs' intentional infliction of emotional distress and invasion of privacy claims are preempted by the LMRA and removal to this Court is proper.

Background

The various Plaintiffs in this action contend that they were injured while employed by Fina and consequently filed workers' compensation claims. As a result of their injuries, the plaintiffs were absent from work for various lengths of time. Due to their history of absenteeism, the Plaintiffs were sent Letters of Concern by Fina in accordance with an employee absenteeism program which was not developed in conjunction with the union. A list of the employees sent such letters was compiled and Plaintiffs contend the list was distributed to "every employee that worked in the plant." Plaintiffs further assert that the list became known as the "hit list" and the publication of the list to other employees was highly embarrassing and humiliating. The Plaintiffs' claim intentional infliction of emotional distress and invasion of privacy resulting from the publication of the list.

Defendants assert that the Management Rights Clause¹ of the collective bargaining agreement ("CBA") between Fina and the union give Fina the right to develop and implement an employee absenteeism program. Defendants argue that because the program was within their rights, sending letters of concern and publishing a list of employees receiving such letters provides no basis for legal liability. Defendants further aver that because an interpretation of the CBA provision is necessary to resolve these claims, the case is removable to federal court.

ANALYSIS

The sole issue before this court is whether Plaintiffs' well-pleaded complaint raises issues "arising under the Constitution, laws, or treaties of the United States" that entitle the Defendants to remove the case to federal court. See 28 U.S.C. §§ 1331, 1441(a).²

Section 1331 provides that: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The party seeking to remove a case to federal court bears the burden of establishing federal jurisdiction. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988), aff'd, 503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992). Significant federalism concerns require this court to strictly construe removal jurisdiction. Willy, 855 F.2d at 1164.

A federal question must appear on the face of the plaintiff's complaint for this court to entertain proper removal jurisdiction. Caterpillar, Inc. v. Williams, 482 U.S. 386, 391, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). In general, removal jurisdiction is not satisfied by raising a federal defense. Id. at 393, 107 S.Ct. at 2430. One exception to this general rule applies to areas of federal law that completely preempt state law, such as controversies involving an interpretation of § 301 of the Labor Management Relations Act (LMRA). Id.; and see Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).

Section 301 Preemption Generally

The Defendants assert that Plaintiffs' claims are properly removed because they are preempted by § 301 of the LMRA and as such are federal questions. 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. § 185(a).

In Lingle, the Supreme Court held that § 301 preempts an application of state law "only if such application requires the interpretation of a collective-bargaining agreement." Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 413, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410, 423 (1988). Congress did not intend that § 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). 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. Lingle, 486 U.S. 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.2d at 423. In such instances, the state law claim is "independent" of the CBA for preemption purposes. Id. at 410, 108 S.Ct. at 1883, 100 L.Ed.2d at 421.

The Court of Appeals for the Fifth Circuit has stated that § 301 preemption occurs when resolution of a dispute is "`substantially dependent upon analysis of the terms' of the collective bargaining agreement." Wells v. General Motors Corp., 881 F.2d 166, 173 (5th Cir.1989) (citing Lueck, 471 U.S. at 220, 105 S.Ct. at 1915, 85 L.Ed.2d 206), cert. denied, 495 U.S. 923, 110 S.Ct. 1959, 109 L.Ed.2d 321 (1990). A plaintiff's state law claims will not be preempted, even when they are "intertwined" with a CBA, so long as they are not "inextricably intertwined" with it. Id. at 175 n. 20; see Lueck, 471 U.S. at 213, 105 S.Ct. at 1912, 85 L.Ed.2d 206.

It is quite common for confusion to exist about the inextricable nature of a claim when a defendant alleges that his actions were permissible under the CBA. However, the Fifth Circuit Court of Appeals has held that "either party may use the CBA to support the credibility of its claims" even though the claim is not preempted. Jones v. Roadway Express, Inc., 931 F.2d 1086 (5th Cir. 1991), reh'g denied, 936 F.2d 789 (5th Cir. 1991). Essentially, this means that although the employers may defend against claims by arguing that their actions were authorized under the CBA and its rules, this fact does not transform the claim into one which requires an interpretation of the CBA. See Anderson v. American Airlines, Inc., 2 F.3d 590, 596-97 (5th Cir.1993).

To determine if adjudicating the claim requires the interpretation of a CBA, a court is required under Lingle to analyze the elements of the tort at issue. Lingle, 486 U.S. at 406-07, 108 S.Ct. at 1881-82, 100 L.Ed.2d at 419-20. If the elements of the cause of action require an interpretation of the CBA, the plaintiff's claim is inextricably intertwined and the case is removable.

Section 301 Preemption and Intentional Infliction of Emotional Distress

The Plaintiffs aver that the publication of a list of employees receiving a Letter of Concern resulted in intentional infliction of emotional distress. The list was allegedly published to all employees. The Plaintiffs do not challenge Fina's right to publish the list to management but they do challenge the distribution of the list to "every employee that worked in the plant." Plaintiff's Motion to Remand, p. 2. Plaintiffs assert that their claims for intentional infliction of emotional distress are purely state law claims which are not preempted by federal labor law.

For the Plaintiffs to sustain their claim of intentional infliction of emotional distress under Texas law, they must prove that: (1) the defendants acted intentionally or recklessly; (2) the defendants' conduct was extreme and outrageous; (3) the defendants' actions caused Plaintiffs emotional distress; and (4) Plaintiff's emotional distress was severe. Tidelands Auto. Club v. Walters, 699 S.W.2d 939, 942 (Tex.App. — Beaumont 1985, writ ref'd n.r.e.) (citing RESTATEMENT (SECOND) OF TORTS § 46 (1965)). Plaintiffs do not allege that any action on the part of the Defendants, other than the publication of the list to non-management Fina employees has caused emotional distress. They allege no instances of harassment, discrimination, physical abuse, or other conduct which would provide grounds for an emotional distress claim.

In several cases, the Court of Appeals for the Fifth Circuit analyzed claims for intentional infliction of emotional distress under the rubric of LMRA preemption and concluded that the determination whether the employer acted wrongfully required an analysis of the employer's obligations under the collective bargaining agreement. Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 636 (5th Cir.1994). (Relying in part on the Fourth Circuit's en banc decision in McCormick v. AT & T Technologies, Inc., 934 F.2d 531 (4th Cir.1991), cert. denied, 502 U.S. 1048, 112 S.Ct. 912, 116 L.Ed.2d 813 (1992)); See also, Baker v. Farmers Electric Coop., ...