Edwards v. Western Mfg., Div. of Mont. Elev.

• Decision Date: 13 August 1986
• Docket Number: No. 86-1468-K.,86-1468-K.
• Citation: 641 F. Supp. 616
• Parties: Eddie EDWARDS, Plaintiff, v. WESTERN MANUFACTURING, DIVISION OF MONTGOMERY ELEVATOR COMPANY; Montgomery Elevator Company; and Quinton Day, Defendants.
• Court: U.S. District Court — District of Kansas

641 F. Supp. 616

Eddie EDWARDS, Plaintiff, v. WESTERN MANUFACTURING, DIVISION OF MONTGOMERY ELEVATOR COMPANY; Montgomery Elevator Company; and Quinton Day, Defendants.

No. 86-1468-K.

United States District Court, D. Kansas.

August 13, 1986.

Beth Regier Foerster, Topeka, Kan., for plaintiff.

Otis Morrow, Arkansas City, Kan., Robert H. Brown, Chicago, Ill., for defendants.

MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

This case is before the court on defendants' motion to dismiss Quinton Day for failure to state a claim and for fraudulent joinder, and to dismiss Montgomery Elevator Company and Western Manufacturing (collectively "Montgomery") for failure to state a claim or for summary judgment. Plaintiff originally filed this action for retaliatory discharge in state court. Plaintiff claimed he was terminated from his job by defendants for exercising his rights under the Kansas Workmen's Compensation Act, K.S.A. 44-501 et seq. Defendants removed the case to this court claiming Edwards' state tort claim was preempted by § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a). Alternatively, defendants argue this court has diversity jurisdiction as Quinton Day was fraudulently joined to destroy diversity. Plaintiff has now moved the court to remand the case to state court, and defendants have moved to dismiss the case upon removal. For reasons set forth below, the plaintiff's motion to remand is denied, and defendants' motion to dismiss is granted.

On December 8, 1983, plaintiff Eddie Edwards was injured in an accident in the course of his employment with defendants. Plaintiff received workmen's compensation temporary total benefits from defendants until April 19, 1984, when he settled his case for a lump sum payment of $7,650.00, based on 10% disability, with an additional time period to resume his original employment with defendants. According to the complaint, plaintiff's supervisor, Quinton Day, informed plaintiff that during his absence he need not call into work every three days in order to retain seniority as required by Art. VI, Sec. 10(f) of the Collective Bargaining Agreement in effect between the parties. Day instructed plaintiff to simply notify him the week before he was released to return to work. However, when plaintiff attempted to return to work on July 13, 1984, he was informed that he had been discharged as of April 19, 1984, due to his failure to report in every three days.

On April 18, 1986, plaintiff filed his complaint in the Cowley County, Kansas District Court, alleging he was intentionally fired in retaliation for filing and proceeding under his workmen's compensation claim. Plaintiff further alleged Montgomery was legally responsible for the acts of its agent, Quinton Day. Plaintiff prayed for reinstatement and damages in excess of $5,000.00. On June 2, 1986, defendants had the case removed to this court. Defendants then filed their motion to dismiss.

Defendants first argue that Quinton Day is not a necessary party in this action and was fraudulently joined to destroy diversity jurisdiction. Because the court finds the plaintiff's claim arises from the collective bargaining agreement between the parties, the state tort claim is preempted by federal law (LMRA § 301), giving this court subject matter jurisdiction. A plaintiff cannot avoid federal preemption by naming an individual supervisor as a defendant in an action arising from the collective bargaining agreement. Hillard v. Dobelman, 774 F.2d 886, 887 (8th Cir. 1985). Therefore, it is unnecessary for the court to address the issue of whether Quinton Day is a necessary party or was fraudulently joined for the purpose of determining if diversity jurisdiction exists. However, as the court espoused during oral arguments on this motion, defendant Day's acts were within the scope of his employment, and as such it is the company that is legally liable for his tortious acts. See, e.g., Fletcher v. Wesley Medical Center, 585 F.Supp. 1260, 1262 (D.Kan.1984). The plaintiff's reliance on Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981), as authority that an employee may sue his supervisors for retaliatory discharge, is misplaced. In Murphy, it was alleged that the supervisors were acting willfully and wantonly. Thus, the court found they could not share in the governmental immunity of the employer, the City of Topeka. In the case at bar, Montgomery is not immune from the torts of its agent. Quinton Day is therefore not a necessary party to this action.

In his complaint, plaintiff failed to plead any facts regarding the "just cause" provision of the collective bargaining agreement, or that his termination was in violation of that agreement. However, defendants contend that plaintiff's retaliatory discharge claim is essentially a federal labor action under § 301 of the LMRA, 29 U.S.C. § 185(a), which provides:

(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, 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.

Defendants argue that because under the collective bargaining agreement Edwards could not be discharged without "just cause," his complaint is really for a breach of the agreement. Plaintiff, on the other hand, contends this is a tort action for retaliatory discharge, which is not covered by the collective bargaining agreement and in which the state has a great interest, thus precluding its preemption by federal law.

In Murphy v. City of Topeka, 6 Kan. App.2d 488, 630 P.2d 186, the Kansas Court of Appeals recognized an exception to the at-will employment doctrine when an employee is discharged for exercising his rights under the workmen's compensation laws. The employee in Murphy was not covered by any sort of contract, including a collective bargaining agreement. 6 Kan. App.2d at 492, 630 P.2d 186. However, the court noted, "plaintiff's action clearly sounds in tort, and the mere existence of a contractual relationship between the parties does not change the nature of his action." 6 Kan.App.2d at 493, 630 P.2d 186. The court adopted this exception due to the important public policy interest in enforcing the workmen's compensation laws.

The Tenth Circuit Court of Appeals, in Peabody Galion v. Dollar, 666 F.2d 1309 (10th Cir.1981), held that an action for retaliatory discharge for filing a workmen's compensation claim was not preempted by the National Labor Relations Act. In Peabody the court relied on an Oklahoma statutory provision which prevented employers from discharging employees who filed workmen's compensation claims. The court stated, "... the underlying activity that provoked the conduct complained of— that is, the filing of workmen's compensation claims under state law—has no tendency to conflict with the National Labor Relations Act or any federal labor law."

In Sutton v. Southwest Forest Industries, Inc., 628 F.Supp. 1034 (D.Kan.1985), Judge Saffels—relying on Peabody—found that under Kansas law the tort of retaliatory discharge for filing a workmen's compensation claim is not preempted by the National Labor Relations Act because the action for retaliatory discharge furthers the state's interest in protecting the general public, and as such transcends the employment relationship as reflected in the collective bargaining agreement.

A similar result was reached by the Ninth Circuit in Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir.1984), cert. denied ___ U.S. ___, 105 S.Ct. 2319, 85 L.Ed.2d 839 (1985), wherein the court held the plaintiff's claim of retaliatory discharge for reporting state health violations by his employer was not preempted by federal labor law.

Peabody, Sutton, and Garibaldi were decided without the guidance of the Supreme Court's recent opinion concerning § 301 preemption of state tort claims. In Allis-Chalmers v. Lueck, ___ U.S. ___, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), the plaintiff filed suit against his employer in state court for the bad faith handling of an insurance claim under an insurance plan established by the collective bargaining agreement. Plaintiff had never filed a grievance as required by the collective bargaining agreement. The employer filed a successful summary judgment motion on the ground that the state law tort claim was preempted by § 301, but the state Supreme Court reversed, distinguishing claims for violation of a labor contract from independent state law torts. The United States Supreme Court reversed, finding that in order for the goal of achieving a uniform federal labor law with respect to labor contracts to be effectuated, the preemptive scope of § 301 must extend beyond state contract actions to encompass state tort claims which have implications regarding the enforcement of collective bargaining agreements. 105 S.Ct. at 1911.

The Court concluded that a state tort action will be preempted by § 301 whenever the interpretation of a collective bargaining agreement underlies any finding of tort liability. 105 S.Ct. at 1915. The Court opined that if a separate tort action of this kind were permitted, employees would be able to avoid the arbitration procedures established in the collective bargaining agreement:

Since nearly any alleged willful breach of contract can be restated as a tort claim for breach of a good-faith obligation under a contract, the arbitrator's role in every case could be bypassed easily if § 301 is not understood to preempt such claims. Claims involving vacation or overtime pay, work assignment, unfair discharge — in short, the whole range of disputes traditionally resolved through arbitration — could be brought in the first instance in state court rather than in contract. A

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