Paul v. Kaiser Found. Health Plan of Ohio

• Decision Date: 11 December 2012
• Docket Number: No. 11–4217.,11–4217.
• Citation: 701 F.3d 514
• Parties: Dana PAUL, Plaintiff–Appellant, v. KAISER FOUNDATION HEALTH PLAN OF OHIO, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

701 F.3d 514

Dana PAUL, Plaintiff–Appellant,

v.KAISER FOUNDATION HEALTH PLAN OF OHIO, Defendant–Appellee.

No. 11–4217.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 2, 2012.

Decided and Filed: Dec. 11, 2012.

ARGUED:Daniel P. Petrov, Thorman & Hardin–Levine Co., LPA, Cleveland, OH, for Appellant. George S. Crisci, Zashin & Rich Co., L.P.A., Cleveland, OH, for Appellee. ON BRIEF:Daniel P. Petrov, Thorman & Hardin–Levine Co., LPA, Cleveland, OH, for Appellant. George S. Crisci, Patrick M. Watts, Zashin & Rich Co., L.P.A., Cleveland, OH, for Appellee.

Before: MERRITT, McKEAGUE and STRANCH, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Plaintiff Dana Paul brought state law claims for disability discrimination and retaliation against her former employer after her 12–year employment as a CT Technologist came to an end. Defendant Kaiser Foundation Health Plan of Ohio removed the action from state court to federal court on the basis of complete preemption under the Labor Management Relations Act, contending plaintiff's claims implicated rights under the collective bargaining agreement. Defendant also moved for judgment on the pleadings, contending that plaintiff's attempt to enforce rights under the governing collective bargaining agreement triggered application of the mandatory arbitration requirement, and that plaintiff failed to meet this requirement by submitting her grievance to arbitration. The district court (1) denied plaintiff's motion to remand to state court, finding removal proper; and (2) granted defendant's motion to dismiss on the pleadings for plaintiff's failure to submit to mandatory arbitration. Plaintiff timely appealed both rulings. For the reasons that follow, we reverse the denial of plaintiff's motion to remand and vacate the district court's judgment on the pleadings.

I. BACKGROUND

The facts relevant to this appeal are not disputed. Plaintiff Dana Paul was hired by Kaiser Foundation Health Plan of Ohio (“Kaiser”) in 1997 to work as a Radiology Technologist. In 2002, she began working as a CT Technologist. Plaintiff suffered work-related injuries that required an anterior cervical spine fusion in December 2006. Major follow-up surgical procedures were performed in February 2008, including a repair of the anterior fusion, a subsequent posterior fusion, and a bone graft. Thereafter, plaintiff contends that she returned to work as a CT Technologist and was able to perform all the essential functions of her position.

In late 2008, Kaiser decided to combine the duties previously performed by Radiology Technologists and CT Technologists under one job description, “CT/Rad Technologist.” Implementation of this change resulted in elimination of the CT Technologist position and required the current CT Technologists to undergo orientation in performing diagnostic imaging services. Plaintiff understood that her newly expanded duties as a CT/Rad Technologist would be physically demanding, requiring her to lift and turn and position disabled and elderly patients for diagnostic x-rays. Since her back surgeries, plaintiff did not believe she could safely perform such physically demanding duties. In February 2009, she filed a “Request for Accommodation” with the Kaiser Human Resources Department, explaining that she could not work in the diagnostic area without assistance. She impliedly asked to be exempted from assignment to shifts when she would be the only CT/Rad Technologist on duty. Plaintiff had been working second shift (4:00 p.m. to 12:00 midnight), including occasional weekend duty, and had not been required to work alone.

Kaiser appears to have initially interpreted plaintiff's request as one to exempt her from all diagnostic x-ray duties. Kaiser denied such request, but remained willing to consider other potential accommodations in an “interactive discussion.” Meanwhile, April 8, 2009 was the effective date of the creation of the new CT/Rad Technologist position and concurrent elimination of plaintiff's former CT Technologist position. The interactive discussion ensued on April 20, 2009 and was followed by a letter from Senior Human Resources consultant Kathleen Dolbin explaining to plaintiff that, in response to her request for accommodation, Kaiser would be working with the employees' union to temporarily change her assignment to the day shift (i.e., 8:00 a.m. to 4:00 p.m.) and exempt her from the weekend duty rotation. Dolbin sought the union's approval of these changes, but approval was reportedly denied because the union was unwilling to infringe other employees' seniority rights under the collective bargaining agreement (“CBA”). The three other CT/Rad Technologists at the Parma Medical Center were asked if there was a volunteer who would prefer working the second shift, including routine weekend duty. All three declined.

Another interactive discussion was conducted on August 12, 2009. This discussion resulted in a letter advising plaintiff that Kaiser's efforts to change her assignment from second shift to first shift and exempt her from weekend duty had been unsuccessful. It further advised that Kaiser was unable to continue the accommodation it had temporarily granted, i.e., allowing plaintiff to continue performing exclusively the duties of her former CT Technologist position. Plaintiff was thus placed on medical leave of absence and was invited to apply for other available positions for which she might be qualified.

Plaintiff's treating physician, Timothy Moore, M.D., subsequently submitted statements to Kaiser attempting to make clear his opinion that Dana Paul remained capable of performing the duties of the CT/Rad Technologist position, as long as the assistance of another CT/Rad Technologist would be reasonably available when she worked in the diagnostic x-ray area. Nonetheless, Kaiser advised plaintiff on September 21, 2009, that she was placed on unpaid status. Plaintiff pursued her remedies under the collective bargaining agreement, but her grievance was denied at step one, step two and step three. Plaintiff did not submit her grievance to arbitration, which would have been the next step available under the CBA.

Plaintiff commenced this action against her employer in the Cuyahoga County Court of Common Pleas on June 9, 2010. The complaint asserted claims, by an Ohio citizen against an Ohio corporation, for disability-based discrimination and retaliation, in violation of Ohio's civil rights law, O.R.C. § 4112.02. Kaiser removed the action to the United States District Court for the Northern District of Ohio, contending that plaintiff's state law claims implicated the terms and conditions of her employment, would necessitate interpretation of rights under the CBA, and were therefore subject to complete preemption by federal law, the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a).

Once in federal court, Kaiser immediately moved for judgment on the pleadings and plaintiff moved for remand to state court. The district court ruled in Kaiser's favor on both motions. The court held that removal was proper based on complete preemption, and held that Kaiser was entitled to judgment on the pleadings because plaintiff had, by undisputedly failing to submit her grievance to arbitration, failed to comply with a mandatory prerequisite to relief under the CBA. Plaintiff timely filed notice of appeal.

II. ANALYSIS

A. Complete Preemption

1. Standard of Review

In support of her motion to remand, plaintiff contended that her complaint, setting forth state law claims by an Ohio citizen against an Ohio corporation, presented no grounds for removal to federal court. She insisted that her claims did not invoke any right under the CBA, did not request relief under the CBA, and did not require interpretation of the CBA. She maintained that the doctrine of complete preemption was erroneously invoked to justify removal.

The district court correctly recognized the governing legal standards. These standards are summarized in Kitzmann v. Local 619–M Graphic Communications Conference, 415 Fed.Appx. 714, 716–18 (6th Cir.2011), as follows:

“Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant. 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).... Our review of whether federal-question jurisdiction exists is governed by the well-pleaded complaint rule, which provides that jurisdiction exists only when a federal question is presented on the face of the plaintiff's complaint. Caterpillar, 482 U.S. at 392, 107 S.Ct. 2425.

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“[W]hen a federal statute wholly displaces the state-law cause of action through complete preemption,” the preempted state-law claim arises under federal law. Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). And while 28 U.S.C. § 1331 provides a district court general federal question jurisdiction, there are also more specific jurisdiction-conferring provisions, including § 301 of the LMRA, see 61 Stat. 156, § 301, codified at29 U.S.C. § 185(a), which both preempts certain state-law contract claims and also confers federal jurisdiction over those claims, see Textron Lycoming Reciprocating Engine Div., Avco Corp. v. UAW, 523 U.S. 653, 657, 118 S.Ct. 1626, 140 L.Ed.2d 863 (1998); Allis–Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985).

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The Supreme Court has thus held that when “resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim, or dismissed as pre-empted by federal labor-contract law.” Allis–Chalmers, 471 U.S. at 220, 105 S.Ct. 1904 (internal citations omitted).

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Because “[§ ] 301 governs claims founded directly on rights created by ...