Markham v. Wertin

• Decision Date: 29 June 2017
• Docket Number: No. 16-2012,16-2012
• Citation: 861 F.3d 748
• Parties: Bryce MARKHAM, Plaintiff-Appellant v. Tony WERTIN, Defendant-Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

861 F.3d 748

Bryce MARKHAM, Plaintiff-Appellant

v.Tony WERTIN, Defendant-Appellee

No. 16-2012

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2016

Filed: June 29, 2017

Rehearing and Rehearing En Banc Denied September 6, 2017

Ryan M. Paulus, Joshua Paul Wunderlich, CORNERSTONE LAW FIRM, Kansas City, MO, for Plaintiff-Appellant.

Bruce C. Jackson, Jr., Michael Gerard Newbold, ARNOLD & NEWBOLD, Kansas City, MO, for Defendant-Appellee.

Before RILEY,¹ Chief Judge, WOLLMAN and KELLY, Circuit Judges.

WOLLMAN, Circuit Judge.

Bryce Markham filed a petition in Missouri state court against the International Brotherhood of Electrical Workers Local 545 (Local 545) and Tony Wertin, alleging that Local 545 had violated the Missouri Human Rights Act (MHRA) by failing to accommodate Markham's disability, by discriminating against him based on his disability, and by retaliating against him for reporting his disability and seeking accommodation. The petition further alleged that Wertin had aided and abetted Local 545's discriminatory and retaliatory conduct. Local 545 removed the action to federal district court and thereafter moved to dismiss. Markham moved to remand the case and to amend the petition. The district court determined that Markham's claims were completely preempted under § 301(a) of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185(a), and § 9(a) of the National Labor Relations Act (NLRA), 29 U.S.C. § 159(a), and that the statute of limitations had expired on those federal claims. The district court thus denied Markham's motion to remand and his motion to amend the petition and granted Local 545's motion to dismiss. Markham appeals from the dismissal of his aiding-and-abetting claim against Wertin, the denial of his motion to remand, and the denial of his motion for leave to amend. We reverse and remand.

I. Background

Local 545 offers a joint apprenticeship and training program. Participants must complete the program before they can become journeymen or be eligible for full union representation. Markham alleged that Wertin was the supervisor of the apprenticeship and training program and an authorized agent of Local 545. According to Markham, Wertin and members of the Joint Apprenticeship and Training Committee (JATC) assign apprentices to various companies for on-the-job training.

Markham enrolled in the apprenticeship and training program in 2008. In May 2013, he lost consciousness while on a lunch break during an on-the-job training assignment. Markham returned to work later that day, but he called in sick the next day. Wertin thereafter informed Markham that he had been terminated from the assignment and instructed Markham to submit a doctor's note documenting the reason for his absence, which Markham did.

Markham suffers from Crohn's Disease. His doctor's note indicated that Markham had tested positive for tetrahydrocannabinol (THC), the active compound in marijuana, but also explained that Markham had been prescribed a legal synthetic version of THC to treat his Crohn's Disease. A urinalysis indicated no presence of marijuana in Markham's system.

Markham was placed on probation on June 11, 2013. He was told that the reason for the probation was that two companies had terminated his on-the-job training assignments "for cause," but he was not told what the cause was. Markham expressed to Wertin his belief that he had been placed on probation because of his illness. Thereafter, Markham was not assigned to any on-the-job training until January 2014, and even then his training opportunities were "drastically reduced compared to other members of the Program, including those with fewer hours completed." Compl. ¶ 39. Moreover, when he was given on-the-job training assignments, "it was for very small jobs, or for jobs that did not provide actual training, but rather relegated [Markham] to doing menial work for others." Id. ¶ 40. On at least one occasion, Markham was unavailable for an assignment because he was not given adequate notice.

Markham was unable to accrue on-the-job training hours as quickly as his peers. The JATC removed Markham from the program on June 9, 2014, before he had completed it and "at the suggestion and/or direction of Wertin." Id. ¶ 44. Although Markham attended two union meetings in attempts to appeal his dismissal, he was never readmitted to the apprenticeship and training program.

Markham filed a petition in the Circuit Court of Buchanan County, Missouri, alleging the four counts mentioned above. Markham alleged that Wertin aided and abetted Local 545's acts of discrimination and retaliation, claiming that:

[Markham's] disability, report of his disability, and his request for accommodation for his disability were all at least a contributing factor in Defendant Wertin's aiding, abetting, compelling, and coercion of Defendant IBEW to fail to place [Markham] for on-the-job training, to terminate [Markham's] participation in the Program, and to fail to re-admit [Markham] to the program.

Id. ¶ 102.

After removing the action to federal district court, Local 545 moved to dismiss the action, submitting in support of the motion the relevant collective bargaining agreement (CBA) and the statement of policies for apprentices, which Local 545 maintained was incorporated by reference into the CBA. Wertin answered the petition, denied the allegations that he aided and abetted any violation of Markham's rights, and later filed a brief in support of removal and dismissal of Markham's lawsuit. Markham moved to remand the case to state court and later sought leave to amend the petition.

The CBA at issue in this case includes a section regarding the apprenticeship and training program. Article 5 of the CBA sets forth the terms, conditions, and responsibilities of the JATC, which is "responsible for the training of apprentices." The JATC has "full authority for issuing all job training assignments and for transferring apprentices from one employer to another." Article 5 states that, if the JATC is unable to resolve any issue concerning an apprentice or an apprenticeship matter, the matter is referred to the Labor-Management Committee for resolution pursuant to the grievance procedure set forth in a different section of the CBA. Article 5 further provides that "[a]n apprentice may have their indenture canceled by the JATC at any time prior to completion as stipulated in the registered standards" and that individuals terminated from the program shall not receive assignments "unless they are reinstated in apprenticeship as per the standards."

Those standards set forth a non-exhaustive list of "causes for which the [JATC] has the authority to cancel the agreement of an apprentice." The standards also explain that each apprentice is indentured to the JATC, that the JATC is responsible for placing apprentices with employers, that the training director issues the assignment for work, and that the JATC has "full power to act on all matters pertaining to transferring apprentices from one job or shop to another." Specifically, an apprentice is assigned to a contractor and remains with the contractor until the apprentice is laid off by the contractor or removed by the JATC. Thereafter, the training director assigns the apprentice to another contractor according to the availability of work. The standards include the JATC's substance abuse testing policy and the length of an apprentice's probationary period.

The district court concluded that Markham's claims implicated the CBA and the accompanying standards for apprentices. "[Markham] would necessarily need to establish, inter alia , that he met certain qualifications, address whether reasonable accommodations could be made pursuant to these agreements, and whether probation was reasonable. In short, the Court necessarily would be required to refer to and interpret these documents to determine what actions, if any, Defendant Union could take as to [Markham]." D. Ct. Order of March 29, 2016, at 10. The district court determined that Markham's claims were substantially dependent upon an analysis of the CBA and thus were completely preempted by § 301(a) of the LMRA. In addition, the district court concluded that Markham's claims of discrimination were completely preempted by § 9(a) of the NLRA because they were, in effect, claims of breach of Local 545's duty of fair representation. Because Markham's claims constituted "a hybrid § 301/duty of fair representation action," the district court dismissed the suit as barred by the six-month statute of limitations that applies to such claims and denied as futile Markham's motion for leave to amend. Id. at 14.

II. Discussion

A defendant may remove a civil action from state to federal court only if the action originally could have been filed in federal district court. See 28 U.S.C. § 1441(a). "Absent diversity of citizenship, federal-question jurisdiction is required." Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). "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." Id. It is well settled "that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption." Id. at 393, 107 S.Ct. 2425.

Congress, however, "may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metro. Life Ins. Co. v. Taylor , 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). "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." Williams , 482 U.S. at 393, 107 S.Ct. 2425. This "complete pre-emption corollary...