Jackson v. Southern California Gas Co.

• Decision Date: 20 October 1989
• Docket Number: No. 87-6506,87-6506
• Citation: 881 F.2d 638
• Parties: 131 L.R.R.M. (BNA) 3238, 50 Empl. Prac. Dec. P 39,204, 52 Empl. Prac. Dec. P 39,470, 112 Lab.Cas. P 11,390, 113 Lab.Cas. P 11,689, 4 Indiv.Empl.Rts.Cas. 1092 David W. JACKSON, Plaintiff-Appellant, v. SOUTHERN CALIFORNIA GAS COMPANY; Claudia Dodson; Lois Durfee; Mary Moore; Jean Bish; Betty Shattery; Pat Shattery, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 638

881 F.2d 638

131 L.R.R.M. (BNA) 3238, 50 Empl. Prac. Dec. P

39,204,

52 Empl. Prac. Dec. P 39,470,

112 Lab.Cas. P 11,390, 113 Lab.Cas. P 11,689,

4 Indiv.Empl.Rts.Cas. 1092

David W. JACKSON, Plaintiff-Appellant, v. SOUTHERN CALIFORNIA GAS COMPANY; Claudia Dodson; Lois Durfee; Mary Moore; Jean Bish; Betty Shattery Pat Shattery, Defendants-Appellees.

No. 87-6506.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1988.

Decided July 28, 1989.

As Amended on Denial of Rehearing En Banc Oct. 20, 1989.

Timothy L. Taggart & Associates, Timothy L. Taggart, Bloomington, Cal., for plaintiff-appellant.

Michael A. Cartelli, Larry I. Stein, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before EUGENE A. WRIGHT, WILLIAM A. NORRIS and CHARLES WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

David W. Jackson appeals from the district court's dismissal of his action against Southern California Gas Company (SCGC) and several employees of SCGC. Jackson, a black man, alleges that he was the victim of discriminatory employment practices causing him to be constructively discharged. Jackson filed his complaint in state court alleging a claim of discrimination under various sections of the California Fair Employment and Housing Act, as well as a contract and several tort claims. SCGC removed the case to federal court. The district court dismissed Jackson's complaint in its entirety. The court concluded that the claims were preempted under federal labor law, and found that Jackson failed to exhaust the grievance procedures contained in the collective bargaining agreement between SCGC and Jackson's union, Local 132 of the Utilities Workers Union of America, AFL-CIO. We affirm the dismissal of Jackson's claims for breach of contract, breach of an implied covenant of good faith and fair dealing, constructive wrongful/tortious discharge, and negligent and intentional infliction of emotional distress. We reverse and remand the dismissal of Jackson's claims for discrimination, wrongful discharge in violation of public policy, and defamation.

FACTS

Jackson began working for SCGC as a Service Grade Clerk on February 14, 1983. Jackson alleges in his complaint that beginning in May, 1983, he was discriminated against because he was black. He lists several actions by defendants in support of his claim that he was not afforded equal employment opportunities and the same terms and conditions of employment as other employees.

Jackson filed a discrimination complaint with the California Department of Fair Employment and Housing (DFEH) on February 24, 1987. The DFEH rejected the complaint and issued a Notice of Verification of Attempt to File on March 18, 1987.

Jackson filed his complaint in state court on April 21, 1987, alleging the following claims: (1) racial discrimination under Cal. Gov't Code Secs. 12920, 12921, 12926, 12940, 12965 (West 1980 & Supp.1989); (2) constructive wrongful/tortious discharge; (3) breach of the covenant of good faith and fair dealing; (4) breach of contract; (5) wrongful discharge in violation of public policy; (6) defamation/libel and slander; (7) intentional infliction of emotional distress; and (8) negligent infliction of emotional distress. SCGC removed the case to federal district court on August 7, 1987, on the ground that the third and fourth claims stated claims under section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185 (1982). SCGC filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) on August 12, 1987. As a basis for dismissal, SCGC argued that Jackson's second, third, fourth, seventh, and eighth causes of action were preempted by section 301 and that they should be dismissed because Jackson failed to exhaust the grievance procedures contained in the collective bargaining agreement. SCGC also contended that Jackson's first, second, third, fourth, fifth, and seventh causes of action should be dismissed because Jackson was not constructively discharged. Attached to SCGC's motion were the affidavits of several supervisory employees, and copies of the collective bargaining agreement and pension and benefit agreements. ¹

A hearing was conducted by the district court on September 21, 1987. Convinced that the complaint had been artfully pled to avoid stating a federal breach of contract claim under section 301, the court summarily dismissed the entire action because Jackson had failed to exhaust the grievance procedures contained in the collective bargaining agreement.

On January 7, 1988, Jackson entered into a "Compromise and Release" in which he settled his workers compensation claim for $30,000. Jackson contends that he was required to resign his employment as a condition of the settlement.

Jackson appeals the court's failure to remand the case to state court and the dismissal of his complaint. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).

ANALYSIS

I. REMOVAL

Jackson contends that his state court complaint was improperly removed to federal court and that the district court should have remanded it to state court. ²

A. Standard of Review

The propriety of removal of a state action to federal court is a question of federal jurisdiction that the court reviews de novo. See Bale v. General Tel. Co., 795 F.2d 775, 778 (9th Cir.1986).

B. Removal Jurisdiction Based on Sec. 301

A suit may be removed to federal district court only if it could have been brought there originally. See 28 U.S.C. Sec. 1441(a) (1982); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987); Hyles v. Mensing, 849 F.2d 1213, 1215 (9th Cir.1988).

The presence or absence of federal-question jurisdiction is governed by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.

Caterpillar, 482 U.S. at 392, 107 S.Ct. at 2429 (citation and footnote omitted). Accordingly "[A] case may not be removed to federal court on the basis of a federal defense, including the defense of preemption...." Id. at 393, 107 S.Ct. at 2430 (emphasis in original); see also Newberry v. Pacific Racing Ass'n, 854 F.2d 1142, 1146 (9th Cir.1988); Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 996 (9th Cir.1987).

Under the "complete pre-emption" doctrine, however,

the pre-emptive force of a statute [may be] so "extraordinary" that it "converts an ordinary state common-law omplaint into one stating a federal claim for purposes of the well-pleaded complaint rule." Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law.

Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430 (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 1546, 95 L.Ed.2d 55 (1987) (footnote omitted)); see also Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285 (9th Cir.1989); Newberry, 854 F.2d at 1146; Young, 830 F.2d at 996-97.

The complete preemption corollary to the well-pleaded complaint rule is most often applied in cases raising claims preempted by section 301 of the LMRA. Section 301(a) provides federal jurisdiction over "[s]uits for violation of contracts between an employer and a labor organization." 29 U.S.C. Sec. 185(a).

[T]he pre-emptive force of Sec. 301 is so powerful as to displace entirely any state cause of action "for violation of contracts between an employer and a labor organization." Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of Sec. 301.

Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983) (footnote omitted); accord Avco Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists, 390 U.S. 557, 558, 88 S.Ct. 1235, 1236, 20 L.Ed.2d 126 (1968) (when "[t]he heart of the [state law] complaint [is] a ... clause in the collective bargaining agreement," the complaint arises under federal law); Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1881 & nn. 4, 5, 100 L.Ed.2d 410 (1988); International Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 856-57, 107 S.Ct. 2161, 2165-66, 95 L.Ed.2d 791 (1987); Caterpillar, 482 U.S. at 393, 107 S.Ct. at 2430; Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210, 105 S.Ct. 1904, 1910, 85 L.Ed.2d 206 (1985); Chmiel, 873 F.2d at 1285; Newberry, 854 F.2d at 1146; Young, 830 F.2d at 997; Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1048 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 504, 98 L.Ed.2d 502 (1987). In short, "[a] suit for breach of a collective bargaining agreement is governed exclusively by federal law under section 301." Newberry, 854 F.2d at 1146; Young, 830 F.2d at 997.

Jackson's fourth cause of action alleges breach of the collective bargaining agreement and quotes at length from section 12.03 of the agreement. Section 12.03 relates to causes for disciplinary action. This claim is therefore one to enforce the collective bargaining agreement and is controlled by section 301.

The remainder of Jackson's state law claims share with this federal claim "a common nucleus of operative fact" because the claims arise from the alleged discriminatory conduct that Jackson alleges caused him constructively to be discharged. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 618-19, 98 L.Ed.2d 720 (1988); United Mineworkers v. Gibbs, 383 U.S. 715, 725-27, 86 S.Ct. 1130, 1138-40, 16 L.Ed.2d 218 (1966). Jackson's state law claims therefore fall within the scope of pendent jurisdiction. Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138....