Mowry v. United Parcel Service

• Decision Date: 18 July 2005
• Docket Number: No. 04-1092.,04-1092.
• Citation: 415 F.3d 1149
• Parties: Stanley C. MOWRY, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1149

415 F.3d 1149

Stanley C. MOWRY, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, Defendant-Appellee.

No. 04-1092.

United States Court of Appeals, Tenth Circuit.

July 18, 2005.

Stefan Kazmierski of Roseman & Kazmierski, L.L.C., Denver, CO, for Plaintiff-Appellant.

Judith A. Biggs (Elizabeth A. Phelan and Jose A. Ramirez, of Holland & Hart LLP, Denver, CO, with her on the brief), of Holland & Hart LLP, Boulder, CO, for Defendant-Appellee.

Before SEYMOUR, ANDERSON and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.

Stanley C. Mowry brought this action against his former employer, United Parcel Service, Inc. (UPS), in Colorado state court alleging (1) unlawful termination in violation of public policy; (2) shorted wages; (3) retaliatory discharge; and (4) intentional infliction of emotional distress. UPS removed the case to federal district court on the basis of diversity jurisdiction. 28 U.S.C. § 1446. It then filed a motion to dismiss all claims on the basis that they were preempted by § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, and for failure to state a claim pursuant to FED.R.CIV.P. 12(b)(6). The district court entered an order of dismissal, and judgment in accordance with that order, concluding that Mr. Mowry's state law causes of action were preempted. On appeal, Mr. Mowry maintains his state law claims are independent of any collective bargaining agreement and, thus, are not subject to § 301 preemption. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

I

Mr. Mowry was employed by UPS as a full-time "feeder driver" for approximately six years. He drove a tractor-trailer unit delivering packages between UPS's hub located in Colorado and certain other package centers. Throughout his employment with UPS, Mr. Mowry was a member of the International Brotherhood of Teamsters (Teamsters). The terms and conditions of Mr. Mowry's employment were governed by a collective bargaining agreement (CBA) negotiated between UPS and the Teamsters called the National Master United Parcel Service Agreement (National Agreement), as well as a regional CBA titled the Central Region United Parcel Service Supplemental Agreement (Supplement).

On April 26-27, 2002, Mr. Mowry drove his regular truck route from Denver, Colorado, to Rawlins, Wyoming, and back. He was pulling a set of loaded Rocky Mountain doubles with a forty foot trailer on the front and a twenty-eight foot trailer on the rear. On the return trip from Rawlins to Denver, Mr. Mowry encountered inclement weather and hazardous road conditions. Subsequent to maneuvering around a jack-knifed tractor trailer stretched across Interstate 80, he pulled into a rest stop to wait for road conditions to improve. After remaining at the rest stop for approximately three hours, Mr. Mowry continued on his return route to Denver. Upon arrival in Denver, he submitted his time card totaling 13.32 compensatory hours for the trip.

Two UPS supervisors had followed Mr. Mowry while he drove the return route from Rawlins to Denver. Based on their observations, the supervisors concluded he had falsified his time card by seeking payment for two hours and forty-seven minutes of breaks he took but failed to record. Due to this discrepancy in reporting, UPS terminated Mr. Mowry for dishonesty on April 29, 2002. In response, Mr. Mowry filed a grievance with the Teamsters, contending he was discharged for exercising his right to pull off the road during unsafe driving conditions. He sought reinstatement and back pay.

Pursuant to Article 5 of the CBA, Mr. Mowry's matter was referred to the Joint Area Committee (JAC), a board composed of equal numbers of UPS management personnel and Teamsters. Invoking Article 18 of the CBA and the federal regulation it incorporates, 49 C.F.R. § 392.14,¹ Mr. Mowry argued as a defense to his discharge that he had reasonably apprehended "the road conditions were such that to continue would have caused serious injury to himself or the public." Aplt.App. at 42. At the conclusion of an evidentiary hearing, a majority of the JAC ruled in favor of UPS and upheld Mr. Mowry's termination. Id. at 93.

Subsequent to the JAC's final decision, Mr. Mowry filed suit against UPS in state court, pleading four causes of action under Colorado law. First, he alleged he "was discharged for exercising his statutory rights and responsibilities." Aple. Supp.App. at 8. Second, he claimed UPS had shorted his checks and refused to address his complaints about them "in retaliation for seeking to enforce his statutory rights to compensation for work performed." Id. Third, he maintained he was discharged "in retaliation for seeking to enforce his statutory rights." Id. at 9. Finally, he asserted the termination of his employment constituted intentional infliction of emotional distress. Id. UPS removed the suit to federal court and filed a FED.R.CIV.P. 12(b)(6) motion. The district court dismissed all of Mr. Mowry's claims on the ground that they were preempted by § 301 of the LMRA.

II

We review the district court's grant of a motion to dismiss de novo. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir.1999). We will uphold dismissal "only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle the plaintiff to relief." Deck v. Engineered Laminates, 349 F.3d 1253, 1256 (10th Cir.2003). We must accept all well-pleaded allegations in the complaint as true and construe them in the light most favorable to the plaintiff. McKenzie v. Renberg's Inc., 94 F.3d 1478, 1487 n. 9 (10th Cir.1996); Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991). "Whether state law is preempted by federal law is a conclusion of law which we also review de novo." Garley v. Sandia Corp., 236 F.3d 1200, 1206 (10th Cir.2001).

Preemption involves competing state and federal interests. Section 301(a) of the LMRA provides:

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.

29 U.S.C. § 185(a). The Supreme Court has held that § 301 authorizes federal courts "to fashion a body of federal common law to be used to address disputes arising out of labor contracts." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). As a result, "[a] state rule that purports to define the meaning or scope of a term in a contract suit therefore is pre-empted by federal labor law." Id. at 210, 105 S.Ct. 1904.

The Court has made it clear, however, that "not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 or other provisions of the federal labor law." Id. at 211, 105 S.Ct. 1904. Indeed, preemption arises only when an "evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract." Id. at 213, 105 S.Ct. 1904 (emphasis added). "[A]s long as the state-law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement for § 301 pre-emption purposes." Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Consequently, we must evaluate each of Mr. Mowry's claims to determine whether they are "inextricably intertwined" with existing provisions of his CBA and, as a result, preempted by § 301 of the LMRA.

(A) Claim for Retaliatory Discharge in Violation of Public Policy²

Mr. Mowry's claim for retaliatory discharge in violation of public policy is based on his allegation that he was terminated for refusing to drive when weather and road conditions posed a risk of serious injury in violation of 49 C.F.R. § 392.14, 4 C.C.R. § 723-15, and 49 U.S.C. § 31105(a)(2). Each of these statutory and regulatory provisions are related and confer similar rights. Section 392.14 of the Federal Motor Carrier Safety Regulations demands that commercial drivers discontinue operation of their motor vehicles in sufficiently dangerous conditions. 49 C.F.R. § 392.14 ("If [weather] conditions become sufficiently dangerous, the operation of the commercial vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated."). Colorado has incorporated § 392.14 by reference, see 4 COLO.CODE REGS. § 723-15 (Rule 2.1), and may impose a civil penalty for its intentional violation, see id. (Rule 12.5). In addition, the Surface Transportation Assistance Act (STAA), 23 U.S.C. § 101 et seq., which is the statutory authority for § 392.14, prohibits an employer from discharging or taking other disciplinary action against an employee who refuses to operate a commercial vehicle because "the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition." 49 U.S.C. § 31105(a)(1)(B)(ii).

Mr. Mowry submits that, based on these statutory and regulatory provisions, his retaliatory discharge claim is subject to evaluation independent of any interpretation of the CBA and, as a result, is not preempted by § 301. UPS counters that Mr. Mowry's public policy claim is preempted for two reasons. First, because each of the statutory and regulatory provisions on which Mr. Mowry relies are expressly incorporated into the CBA, resolution of his retaliation claim necessarily will involve an interpretation of the labor agreement. Second, because each element of the retaliation claim requires or is substantially dependent on interpretation of the CBA, the claim and the agreement are inextricably intertwined. We...