Wrobbel v. Asplundh Const. Corp.

• Decision Date: 24 April 2008
• Docket Number: No. 07-CV-10988-DT.,07-CV-10988-DT.
• Citation: 549 F.Supp.2d 868
• Parties: Gail WROBBEL, Plaintiff, v. ASPLUNDH CONSTRUCTION CORPRATION, and International Brotherhood of Electrical Workers, Local 17, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 868

549 F.Supp.2d 868

Gail WROBBEL, Plaintiff, v. ASPLUNDH CONSTRUCTION CORPRATION, and International Brotherhood of Electrical Workers, Local 17, Defendants.

No. 07-CV-10988-DT.

United States District Court, E.D. Michigan, Southern Division.

April 24, 2008.

Deborah L. Gordon, Deborah L. Gordon Assoc., Bloomfield Hills, MI, for Plaintiff.

Frederic E. Champnella, Jr., Susan D. Koval, Keller Thoma, George H. Kruszewski, John R. Runyan, Jr., Sachs Waldman, Detroit, MI, for Defendants.

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO RMAND AND ORDER REMANING CASE TO WAYNE COUNTY CIRCUIT COURT

GERALD E. ROSEN, District Judge.

I. INTRODUCTION

On January 5, 2007, Plaintiff Gail Wrobbel filed a one-count Complaint in this Court alleging that Defendants Asplundh Construction Company ("Asplundh")¹ and her Union, the International Brotherhood of Electrical Workers ("IBEW") Local 17, discriminated against her because of her sex in violation of Title VII of the Civil Rights Act of 1964, when the Union failed to refer her out to Asplundh. and Asplundh failed to hire her, for a position she applied for through the Union's "out-of-work" referral list. See Wrobbel v. Asplundh, et al, 07-CV-10110-DT.

Shortly thereafter, Plaintiff filed a second complaint against the same party-defendants in Wayne County Circuit Court. This second complaint was predicated upon the same factual allegations as the federal complaint but alleged a sex discrimination claim under the Michigan Elliott-Larsen Civil Rights Act. Defendants removed this second action to federal court on March 7, 2007 asserting federal question jurisdiction under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See Wrobbel v. Asplundh, et al, 07-CV-10998-DT, 2007 WL 4609302, 3/7/07 Notice of Removal. The case was subsequently reassigned to this Court as a "companion case" to the earlierfiled Title VII action.

Plaintiff thereafter filed the instant Motion to Remand the second complaint to State court. Defendants have responded and Plaintiff has replied. Having reviewed and considered the parties' briefs and the record of this matter, the Court has determined that oral argument is not necessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(e)(2), this matter will be decided on the briefs. This Opinion and Order sets forth the Court's ruling.

II. FACTUAL BACKGROUND

Plaintiff Gail Wrobbel is a former employee of Harlan Electric Company and a member of IBEW Local 17. Plaintiff worked for Harlan for approximately ten years as an Operator/Material Handler/Yard Person, in which capacity she was responsible for maintaining one of the yards where Harlan's supplies and equipment were stored, loading and unloading trucks, and assisting crews who were performing overhead line construction and maintenance work pursuant to a contract Harlan held with Detroit Edison.

In March 2004, Harlan was not successful in its bid to continue performing overhead electrical line construction and maintenance work for Edison. Defendant Asplundh won the contract. As a result of losing the Edison contract, Harlan laid off all of its employees who had been performing Edison work, including Plaintiff Wrobbel. Plaintiff thereafter went to the offices of IBEW Local 17 and signed the "Out-of-Work List."

Asplundh is a signatory to the collective bargaining agreement ("CBA") covering utility power work entered into between the American Line Builders Chapter, NECA and IBEW Local 17. Section 3.02 of that agreement provides that Local 17 "shall be the sole and exclusive source of referrals of applicants for employment [by signatory members of the American Line Builders Chapter.]" The referral system provided in Article III of the CBA requires that employers needing workers advise the Business Manager of the Local Union of the number of applicants needed. The Business Manager, in turn, is to refer applicants to the requesting employer in the order of their place on the "Out-of-Work List." See CBA § 3.13. The employer, however, is not obligated to hire employees in any particular order and retains the right to reject any applicant. Id. § 3.03.

Plaintiff claims that Asplundh and Local 17 conspired to keep her from being "referred out" after she was laid off by Harlan, thereby preventing her from being hired by Asplundh as an operator/ material handler/yard person (her former position with Harlan) or any other position/opening with the company. She alleges that a male applicant who had no prior experience as an operator/materiaj handler/yard person was referred out by Local 17 and was hired by Asplundh to fill her former position.

Plaintiff is now suing Local 17 and Asplundh claiming that Asplundh and the union discriminated against her on the basis of her sex. As indicated, Plaintiff has filed two separate actions: one alleging a claim under Title VII of the Civil Rights Act of 1964, as amended, and the second one, which was originally filed in State court, alleging a claim under Michigan's Elliott-Larsen Civil Rights Act. It is this second Complaint that is at issue here.

Defendants removed Plaintiffs Elliott-Larsen Complaint on the basis of federal question jurisdiction arguing that Plaintiffs claim of discrimination against them is completely preempted by federal labor law. Plaintiff disputes Defendants' contentions and has moved to remand the case to State court.

III. DISCUSSION

A. PLAINTIFF'S ELLIOTT-LARSEN COMPLAINT IS NOT "COPLETELY PREEMPTED" UNDER FEDERAL LABOR LAW

1. THE COMPLETE PREEMPTION DOCTRINE

A defendant may remove an action to federal court only if that court has original subject matter jurisdiction over the action.² If a court lacks diversity jurisdiction over an action, as in the instant case, it must have federal question jurisdiction over the action in order to have subject matter jurisdiction. A court has federal question jurisdiction over an action when that action "arises under" the Constitution or laws of the United States.³ Generally, this "federal question" jurisdiction is governed by the well-pleaded-complaint rale, which provides that "federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Potential defenses, including a federal statute's preemptive effect, do not provide a basis for removal. Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003); Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425; Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 10, 12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Thus, because a plaintiff is the master of her complaint, she can generally choose to avoid federal jurisdiction by asserting only state law claims. Caterpillar, 482 U.S. at 398-99, 107 S.Ct. 2425; Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Alongi v. Ford Motor Co., 386 F.3d 716, 727-28 (6th Cir.2004); Medlen v. Estate of Meyers, ___ Fed.Appx. ___, 2008 WL 961637 at *2 (Apr. 9, 2008).

The Supreme Court, however, has established an exception to the well-pleaded complaint rule: If Congress intends that a federal statute "completely preempt" an area of state law, any complaint alleging claims under that area of state law is presumed to allege a claim arising under federal law. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 1546-1547, 95 L.Ed.2d 55 (1987). The complaint may thus be removed to federal court and will be treated as alleging a federal cause of action, notwithstanding that on its face, the plaintiffs complaint alleges only a statelaw cause of action.

But the complete preemption doctrine is a very limited exception to the well-pleaded-complaint rule. Palkow v. CSX Transp., Inc., 431 F.3d 543, 553 (6th Cir.2005). "Complete preemption" applies only in the extraordinary circumstance when Congress intends not merely to preempt a certain amount of state law, but also to transfer jurisdiction to decide the preemption question from state to federal courts. See Metropolitan Life, 481 U.S. at 65-66, 107 S.Ct. at 1547-48 (finding a statement of such intent in ERISA's legislative history); Beneficial Nat. Bank, 539 U.S. at 7-8, 123 S.Ct. 2058 (removal under complete preemption doctrine found proper where Congress provided for an exclusive federal cause of action for usury against national banks and also set forth procedures and remedies governing that cause of action). Without evidence of Congress's intent to transfer jurisdiction to federal courts, there is no basis for invoking federal judicial power. Strong v. Telectronics Pacing Systems, Inc., 78 F.3d 256, 259 (6th Cir.1996).

The Supreme Court has "demonstrated a reluctance to extend application of the [complete preemption] doctrine, largely limiting its finding of complete preemption to a handful of federal statutes." Palkow, supra, 431 F.3d at 553. In fact, the Supreme Court has found only three statutes to have preemptive force so "extraordinary" that they can convert a state law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule and provide the basis for removal jurisdiction: Section 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185; the Employee Retirement Income Security Act of 1975 (ERISA), 29 U.S.C. §§ 1001-1461; and Sections 85 and 86 of the National Bank Act, 12 U.S.C. §§ 85, 86. See Beneficial Nat. Bank, supra, 539 U.S. at 7-9, 123 S.Ct. 2058; Mikulski v. Centerior Energy Corp., 501 F.3d 555, 563 (6th Cir.2007).

1. SECTION 301 PREEMPTION

In their Notice of Removal of Plaintiffs Elliott-Larsen Complaint, the only statute relied upon by Defendants was Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. [See Notice of Removal, § 6.] Section 301 of the LMRA provides:

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