Tina Espinoza v. Cargill Meat Solutions Corp

Filing

PUBLISHED OPINION FILED. [09-11170 Affirmed] Judge: EHJ , Judge: ECP , Judge: RCO. Mandate pull date is 10/26/2010 [09-11170]

Tina Espinoza v. Cargill Meat Solutions Corp

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 5, 2010 N o . 09-11170 Lyle W. Cayce Clerk

T IN A ESPINOZA, Plaintiff­Appellant v. C A R G I L L MEAT SOLUTIONS CORPORATION, D e fe n d a n t ­ A p p e lle e

A p p e a l from the United States District Court for the Northern District of Texas

B e fo r e JONES, Chief Judge, PRADO, Circuit Judge, and O'CONNOR * , District Judge. E D W A R D C. PRADO, Circuit Judge: T in a Espinoza appeals the district court's grant of summary judgment in fa v o r of Cargill Meat Solutions Corporation ("Cargill") on her negligence and g r o s s negligence claims, stemming from an injury she incurred while working a t Cargill's meat packing plant. The district court found that (1) Espinoza w a iv e d her right to sue Cargill under Texas tort law by electing to participate in the Cargill Meat Solutions Corporation Texas Occupational Temporary D is a b i l it y Plan (the "Plan"); (2) § 301 of the Labor Management Relations Act

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District Judge of the Northern District of Texas, sitting by designation.

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No. 09-11170 (" L M R A " ), 29 U.S.C. § 185(a), preempted her suit; and (3) Espinoza failed to e x h a u s t the claims, grievance, and arbitration procedure (the "Claims P roced u re ") in the Plan and in Cargill's collective bargaining agreement ("CBA"). On appeal, Espinoza argues that (1) under Texas Labor Code ("TLC") § 406.033(e), her waiver was "void and unenforceable"; (2) § 301 of the LMRA d o e s not preempt her suit because her negligence claim is not "inextricably in t e r t w in e d " with any provision of Cargill's CBA; and (3) because she retained h e r right to sue, she need not follow the Claims Procedure. B e c a u s e Cargill offered its employees Workers' Compensation coverage, a n d TLC § 406.033(e)'s prohibition against waiver of an employee's right to sue o n ly applies to an employer who does not offer coverage, Espinoza's waiver was v a lid and enforceable. Additionally, § 301 of the LMRA preempts Espinoza's suit b e c a u s e a sufficient nexus exists between the terms of the CBA and the elements o f Espinoza's negligence cause of action for purposes of preemption. Finally, b e c a u s e Espinoza's waiver of her rights was enforceable, her failure to follow the C la im s Procedure bars her suit. We therefore affirm the district court's grant o f summary judgment in favor of Cargill. I . FACTUAL AND PROCEDURAL BACKGROUND S in c e 2002, Cargill, a corporation operating a meat packing plant in F r io n a , Texas, has provided Workers' Compensation insurance for its employees. In addition to the Workers' Compensation insurance policy, Cargill instituted t h e Plan, which provides medical benefits so long as the injured claimant r e m a in s employed with Cargill. Upon commencement of employment, Cargill e m p l o y e e s may: (1) receive protection under Cargill's Workers' Compensation in s u r a n c e policy; (2) waive Workers' Compensation protection and retain the r ig h t to sue in tort; or (3) waive both Workers' Compensation protection and the r ig h t to sue in tort, and instead participate in the Plan.

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No. 09-11170 O n September 14, 2006, Cargill hired Espinoza. On September 15,

2 0 0 6 -- t h e day after her hiring--Espinoza signed a written waiver of Workers' C o m p e n s a t io n insurance and an election to participate in the Plan. The waiver sta tes: I have reviewed (1) the [CBA] between Excel1 and the United Food a n d Commercial Workers Local No. 540, AFL-CIO, as amended . . . , (2 ) a summary of the [Plan], and (3) the written Notice dated APRIL 1 5 , 2002, that Excel now provides Workers' Compensation I n s u r a n c e under the Texas Workers' Compensation Act (the Act), a n d I understand that I may make a choice as to the coverage I d e s ir e . Therefore, I hereby WAIVE Workers' Compensation I n s u r a n c e and make the election checked as follows: U n d e r the bolded sentence, the waiver provides two options: I n lieu of Workers' Compensation Insurance, I elect to be covered by t h e [Plan], and I understand that the exclusive and mandatory p r o c e d u r e for enforcing my rights will be the [Claims Procedure] u n d e r the Plan and the CBA. In lieu of Workers' Compensation Insurance and in lieu of coverage u n d e r the [Plan], I elect to retain my rights of action under common a n d statutory law. I understand such rights will be subject to all d e fe n s e s available to Excel under the common and statutory law. I further understand and agree that the exclusive and mandatory p r o c e d u r e for enforcing my rights will be the claim procedure p r o v id e d in the CBA, including final and binding arbitration under t h e Federal Arbitration Act, 9 U.S.C. §§ 2­13. E s p in o z a initialed the first option. Cargill also entered into a CBA with the United Food and Commercial W o r k e r s CLC Local #540, AFL-CIO (the "Union"), which governs the r e la t io n s h ip between Cargill and its employees, including Espinoza. The CBA d ic t a t e s that the Plan is the sole mechanism for addressing workplace injuries,

Cargill succeeded Excel through a name change. The parties do not dispute that all relevant provisions are one and the same and are fully applicable to the instant litigation.

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No. 09-11170 a n d states that the Union "waive[s] on behalf of itself and all bargaining unit e m p lo y e e s , and [sic] any and all other causes of action which it or such e m p lo y e e s possess outside said Disability Plan which may in any way relate to o r arise out of an on the job accident, illness, or injury." If a claim is not resolved b y the Plan's administrative procedures, an employee may then proceed to a r b it r a t io n pursuant to the CBA, which is "final and binding upon all parties." The Plan also states that "there shall be no right to appeal." On February 15, 2007, Espinoza injured her hand while operating a "butt b o n e " saw. After her injury, Espinoza began receiving medical and wage

r e p la c e m e n t benefits through the Plan. Although she received Plan benefits, she d id not miss any time from work. She did not seek administrative review of her b e n e fits through the Claims Procedure. On August 29, 2007, Cargill fired E s p in o z a , which also terminated her eligibility for Plan benefits. Espinoza s u b s e q u e n t ly filed this action against Cargill, alleging gross negligence and n e g lig e n c e for failing to properly train and supervise her, failing to adopt proper p o lic e s and procedures regarding operation of machinery, failing to provide safe e q u ip m e n t , and failing to provide a safe place of work. Cargill filed a motion for summary judgment, which the district court g r a n t e d . The district court found that Espinoza had waived her causes of action fo r torts when she elected to participate in the Plan, and that TLC § 406.033(e) d id not render her waiver void and unenforceable because Cargill provided its e m p lo y e e s with the option to retain coverage through Workers' Compensation in s u r a n c e , thus remaining a "subscriber." The district court also held that § 301 o f the LMRA preempted Espinoza's suit because the scope of Cargill's duties and E s p in o z a 's remedies under the CBA were inextricably intertwined with the scope o f Cargill's legal duty for purposes of Espinoza's negligence claim. Finally, the d is t r ic t court found that Espinoza's failure to follow the Claims Procedure p r e c lu d e d her negligence action. Espinoza timely appealed. 4

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No. 09-11170 I I . JURISDICTION AND STANDARD OF REVIEW W e have jurisdiction under 28 U.S.C. § 1291, and review "the district c o u r t's grant of summary judgment de novo, applying the same standard as the d is t r ic t court." Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 228­29 (5th Cir. 2 0 1 0 ) (citing Golden Bridge Tech., Inc. v. Motorola, Inc., 547 F.3d 266, 270 (5th C ir . 2008)). Summary judgment is appropriate "if the pleadings, the discovery a n d disclosure materials on file, and any affidavits show that there is no genuine is s u e as to any material fact and that the movant is entitled to judgment as a m a t t e r of law." FED. R. CIV. P. 56(c). "Factual controversies are construed in the lig h t most favorable to the nonmovant, but only if both parties have introduced e v id e n c e showing that an actual controversy exists." Lynch Props., Inc. v.

P o to m a c Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Little v. Liquid A ir Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)). I I I . DISCUSSION O n appeal, Espinoza advances several arguments, the first alleging that t h e district court erred by finding her waiver of her right to sue Cargill valid and e n fo r c e a b le under TLC § 406.033(e). Espinoza also argues that the district court e r r e d by holding that § 301 of the LMRA preempts her cause of action because t h e legal duties upon which her negligence claim rests are not dependent upon a n interpretation of the CBA, and are thus not inextricably intertwined with the C B A . Finally, Espinoza contends that the district court erred by holding that h e r failure to initiate a claim through the Claims Procedure precludes her suit, b e c a u s e she is not seeking Plan benefits and is thus not required to participate in such procedures.

A.

E s p i n o z a 's Waiver of Workers' Compensation Insurance Bars her S u it

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No. 09-11170 E s p in o z a 's primary argument involves an application of TLC § 406.033. In relevant part, this provision reads: (a ) In an action against an employer who does not have workers c o m p e n s a t io n insurance coverage to recover damages for personal in ju r ie s or death sustained by an employee in the course and scope o f the employment, it is not a defense that: (1 ) the employee was guilty of contributory negligence; (2 ) the employee assumed the risk of injury or death; or (3 ) the injury or death was caused by the negligence of a fe llo w employee. . . . (e ) A cause of action described in Subsection (a) may not be waived b y an employee before the employee's injury or death. Any a g r e e m e n t by an employee to waive a cause of action or any right d e s c r ib e d in Subsection (a) before the employee's injury or death is v o id and unenforceable. E s p in o z a offers several reasons for why we should find that her waiver of fu t u re actions against Cargill is void and unenforceable. First, she contends that C a r g ill failed to provide evidence that it covered its employees with a Workers' C o m p e n s a t io n insurance policy. Alternatively, Espinoza claims that the

le g is la t iv e history behind TLC § 406.033(e) mandates that we treat Cargill as a n o n -s u b s c r ib in g employer because the Workers' Compensation insurance did not c o v e r Espinoza for her injuries. Finally, Espinoza argues that the options

C a r g ill provides its employees with respect to workplace injury medical coverage a r e illegal. 1. E v i d e n c e of Cargill's Insurance Policy

E s p in o z a argues that Cargill failed to demonstrate that it purchased a W o r k e r s ' Compensation insurance policy. Cargill responds that it provided s u ffic ie n t evidence, including (1) the affidavit of Cargill's Vice President Brenda S m i t h - P ir k le , who stated that Cargill's predecessor Excel became a Workers' C o m p e n s a t io n subscriber in 2002, and provided coverage at the Friona plant; (2)

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No. 09-11170 t h e affidavit of the Friona Plant's Human Resources Manager, Margaret R e n t e r ia , who stated that Cargill provides Workers' Compensation insurance c o v e r a g e for employees who desire it, as well as Plan coverage for those who do n o t2 ; (3) Espinoza's signed waiver of Workers' Compensation insurance coverage, w h ic h states that she reviewed "the written Notice dated APRIL 15, 2002, that E x c e l now provides Workers' Compensation Insurance"; and (4) Workers' C o m p e n s a t io n insurance policy excerpts, which reference "Cargill, Incorporated" r a t h e r than "Cargill Meat Solutions Inc.," and which Cargill concedes do not s p e c ific a lly show that Cargill insured the workers at its Friona Plant. Espinoza c h a lle n g e s the sufficiency of this evidence and argues that no one at Cargill ever in fo r m e d her that Cargill offered Workers' Compensation insurance coverage or e x p la in e d Workers' Compensation to her. Espinoza relies on Morales v. Martin Resources, Inc., in which a Texas C o u r t of Appeals reversed a grant of summary judgment in favor of an employer b e c a u s e the employer failed to provide evidence that it covered its employees u n d e r a Workers' Compensation policy. 183 S.W.3d 469, 473 (Tex.

A p p .-- E a s t la n d 2005, no pet.). In that case, a temporary employee sued his s t a ffin g company and his temporary employer, Martin Resources, Inc., for n e g lig e n c e , after injuring his hand. Id. at 470. Martin Resources, Inc.

s u b m it t e d (1) an affidavit of an underwriting specialist with an insurance c o m p a n y stating that during the time in question, Martins Resources, Inc. had W o r k e r s ' Compensation insurance coverage; (2) an affidavit from a Martin R e s o u r c e s , Inc. plant manager which stated that Martin Resources, Inc. had

Espinoza takes issue with Renteria's reference to Workers Compensation "benefits" rather than a reference to an insurance policy, arguing that "evidence of a policy in this matter can only be inferred or assumed from Ms. Renteria's affidavit." Renteria's affidavit, however, very clearly asserts that Cargill provided a Workers' Compensation insurance plan to its employees, regardless of the terminology she adopted. We will therefore not draw Espinoza's suggested distinction between "policy" and "benefits."

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No. 09-11170 W ork ers' Compensation insurance coverage when the employee injured his hand; a n d (3) a Workers' Compensation insurance policy, which insured "Martin R e s o u r c e Management Corporation," rather than Martin Resources, Inc. Id. at 4 7 3 . The Morales court found that, "[i]n the absence of any evidence explaining t h e relationship, if any, among these entities, the insurance policy presented by M a r t in Resources, Inc. created a fact issue as to whether Martin Resources, Inc. h a d workers' compensation insurance." Id. As such, "Martin Resources, Inc. fa ile d to meet its summary judgment burden of establishing that it was covered b y workers compensation insurance coverage at the time of Morales's injury." Id. In response, Cargill directs us to Esquivel v. Mapelli Meat Packing Co., in w h ic h another Texas Court of Appeals affirmed a grant of summary judgment in favor of an employer in a case where an employee challenged the existence of t h e employer's Workers' Compensation plan. 932 S.W.2d 612, 613­14 (Tex. A p p .-- S a n Antonio 1996, writ denied). To prove coverage, the employer

s u b m it t e d an affidavit of a manager, which stated that at the time of the e m p lo y e e 's injury, the employer's Workers' Compensation plan "was in full force a n d effect"; as well as an affidavit of an employee of the insurance company that u n d e r w r o t e the Workers' Compensation policy, stating that the employer was a s u b s c r ib e r . Id. at 615, 616­17. Because the employee "did not point out," nor d id the Esquivel court find, "other evidence that controvert[ed] the factual a s s e r t io n s contained in" the employer's affidavits, the Esquivel court affirmed t h e grant of summary judgment in favor of the employer. Id. at 617. We find Esquivel more analogous to this case. The Morales court reversed t h e district court's grant of summary judgment in favor of Martin Resources, I n c ., citing existing fact issues. See 183 S.W.3d at 473. This implies that the e m p l o y e e in Morales offered proof that countered the affidavits produced by M a r t in Resources, Inc. In contrast, Espinoza has not provided any evidence to 8

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No. 09-11170 c o u n t e r the Smith-Perkle or Renteria affidavits, other than her assertion that n o one from Cargill ever explained Workers' Compensation to her or informed h e r of its existence. Espinoza's lack of knowledge, however, cannot suffice to c r e a t e a fact issue as to whether Cargill offered Workers' Compensation p r o t e c t io n to its employees.3 We thus find that Cargill provided sufficient

e v id e n c e to conclude, as a matter of law, that Cargill had Workers' C o m p e n s a t io n insurance. 2. C la s s if y in g Cargill as a Subscribing Employer argues that, assuming Cargill did purchase Workers'

E s p in o z a

C o m p e n s a t io n insurance, it never covered Espinoza with it, and thus Cargill is m o r e properly characterized as a "non-subscribing" employer for purposes of T L C § 406.033. Cargill, however, is most fairly characterized as a subscribing e m p lo y e r . TLC § 406.033(e) provides that an employee may not waive "[a] cause o f action described in Subsection (a)," and that "[a]ny agreement by an employee t o waive a cause of action or any right described in Subsection (a) before the e m p lo y e e 's injury or death is void and unenforceable." (emphasis added).

Subsection (a) of TLC § 406.033, in turn, refers to "an action against an employer w h o does not have workers' compensation insurance coverage to recover damages fo r personal injuries or death sustained by an employee in the course and scope o f the employment." (emphasis added). Because TLC § 406.033(a) refers only t o whether an employer has Workers' Compensation insurance coverage, and not t o whether an individual employee has been covered by his or her employer's W o r k e r s ' Compensation policy, the operation of TLC § 406.033(e)'s bar does not

Additionally, Espinoza's assertion is belied by the waiver she signed, which states that she "reviewed . . . the written Notice dated APRIL 15, 2002, that Excel now provides Workers' Compensation Insurance under the Texas Workers' Compensation Act (the Act), and . . . understand[s] that [she] may make a choice as to the coverage [she] desire[s]." Texas law charges a person with knowledge of the contents of a document he or she signs. See In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 232 (Tex. 2008).

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No. 09-11170 a p p ly to Cargill--an employer who has Workers' Compensation

c o v e r a g e -- ir r e s p e c tiv e of Espinoza's decision to opt-out. 3. L e g a li t y of Cargill's Options

Espinoza also argues that Texas labor law does not permit the three c h o ic e s Cargill offers its employees. Workers such as Espinoza are always at lib e r t y to decline their employer's Workers' Compensation insurance coverage. See TLC § 406.034(b) ("An employee who desires to retain the common-law right o f action to recover damages for personal injuries or death shall notify the e m p lo y e r in writing that the employee waives coverage under this subtitle and r e t a in s all rights of action under common law."). Espinoza, however, interprets T L C § 406.034 as mandating that employees either retain the Workers' C o m p e n s a t io n coverage provided by their employer, or retain their right to sue in tort for personal injuries, and contends that TLC § 406.034 does not permit a third option where an employee opts out of Workers' Compensation coverage a n d waives his or her right to sue in tort. Reading TLC § 406.034 in conjunction with TLC § 406.033, however, d e m o n s t r a t e s that Espinoza's "either or" argument is not a reasonable in t e r p r e t a t io n of Texas's Workers' Compensation Act as a whole. See generally T e x . Workers' Comp. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000) (" [W ]e do not view disputed portions of a statute in isolation.") (citation omitted). While it is true that TLC § 406.034 states that an employee may opt out of W o r k e r s ' Compensation by providing his or her employer with his or her in t e n t io n to retain the right to sue in tort, the plain terms of TLC § 406.033 a llo w the same employee to waive his or her right to sue, so long as the employer h a s Workers' Compensation insurance. Therefore, Espinoza was at liberty to w a iv e both her right to sue in tort and Cargill's Workers' Compensation coverage w it h o u t her waiver becoming "void and unenforceable." TLC § 406.033(e). We t h u s find that Espinoza's waiver was valid and enforceable. 10

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No. 09-11170 4. E s p i n o z a 's Other Arguments

E s p in o z a argues that the legislative history behind the passage of TLC § 406.033(e), when read in conjunction with the rest of Texas's Workers' C o m p e n s a t io n Act, demonstrates the Texas Legislature's intent to prohibit the s o r t of waiver that Cargill procured from Espinoza. The Texas Supreme Court, h o w e v e r , has stated that a statute's "enacted language is what constitutes the la w , and when a statute's words are unambiguous and yield a single inescapable in t e r p r e t a t io n , the judge's inquiry is at an end." Alex Sheshunoff Mgmt. Servs., L .P . v. Johnson, 209 S.W.3d 644, 651­52 (Tex. 2006) (citation omitted). The o p e r a t io n of TLC § 406.033(e), and its interplay with TLC § 406.034, is u n a m b ig u o u s . We thus find that Espinoza's legislative history argument fails. E s p i n o z a also makes the unsupported contention that Cargill only p r o v id e d "a minimal policy which covers no one." She uses this assertion to

s u p p o r t her argument that Cargill "funnels" new employees into its Plan in a s c h e m e to make an end run around Texas's Workers' Compensation Act. Espinoza, however, offers no evidence to demonstrate that Cargill bought only a "minimal policy." We will not give credence to this unsupported assertion. I n several instances, Espinoza seems to argue that she was not bound by h e r signed waiver because no one at Cargill explained it to her. As noted by C a r g ill, Texas law charges a person with knowledge of the contents of a d o c u m e n t he or she signs. See In re Lyon Fin. Servs., Inc., 257 S.W.3d at 232. To the extent that Espinoza makes this argument, it lacks merit. F in a lly , Espinoza argues that Cargill's system "seriously endanger[s] the W o r k e r s ' Compensation system in Texas." We fail to see how this is the case. By operation of Texas's Workers' Compensation law, Espinoza was covered by C a r g ill's Workers' Compensation program, and would have remained covered h a d she not signed a waiver within five days of starting her employment. Because Cargill's employees remain covered by Workers' Compensation as long 11

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No. 09-11170 a s they choose to be, Cargill's system is entirely consistent with Texas's Workers' C o m p e n s a t io n Act. B. T h e Waiver in the CBA was Valid, Thus Barring Espinoza's Suit A lt h o u g h the district court did not address this issue, Espinoza argues t h a t the Union's agreement with Cargill in the CBA, stating that "[a]ny and all c la im s , causes of action or controversy arising out of or otherwise related to on t h e job . . . injuries shall be covered and administered pursuant to . . . [the] P la n ," also violates TLC § 406.033(e). Espinoza asserts that Cargill would b r e a c h the CBA if it covered her with Workers' Compensation insurance. According to Espinoza, because Cargill was contractually obligated not to cover it s employees with Workers' Compensation insurance, the CBA's waiver of U n io n employees' right to sue was void as a contractual provision that violates t h e law. In general, unions are the "exclusive representatives of all the employees in [a] unit for the purposes of collective bargaining in respect to rates of pay, w a g e s , hours of employment, or other conditions of employment," 29 U.S.C. § 159(a), and are "allowed a great deal of flexibility in serving [their] bargaining u n it [s ] during contract negotiations." Prudential Ins. Co. of Am. v. NLRB, 661 F .2 d 398, 400 (5th Cir. 1981). "This flexibility includes the right of the union to w a iv e some employee rights, even the employee's individual statutory rights." Id. (citing Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 4 5 5 (1967)); see also Cupit v. Waltz, 90 F.3d 107, 109 (5th Cir. 1996) (noting that a union has the authority to bargain away an employee's right to sue for w o r k p la c e injuries). "Courts which have invalidated a clear contractual waiver o f an employee's individual statutory right have done so only when the waived r ig h t affects the employee's right to exercise his basic choice of bargaining r e p r e s e n t a t iv e ." Prudential Ins. Co. of Am., 661 F.2d at 400­01 (citing NLRB v. M a g n a v o x of Tenn., 415 U.S. 322 (1974)). 12

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No. 09-11170 T h e Union, as Espinoza's "exclusive representative," 29 U.S.C. § 159(a), h a d the authority to waive her right to sue, so long as Texas law permitted the w a iv e r . See Cupit, 90 F.3d at 109. As discussed above, Espinoza's simultaneous w a iv e r of both Cargill's Workers' Compensation protection and her right to sue in tort was valid and enforceable under TLC § 406.033. Because Espinoza was a t liberty to waive her right to sue in tort, the Union, through the CBA, could a ls o do so on her behalf. We therefore find that the CBA provision mandating t h a t the Plan cover and administer all workplace injuries was valid and e n fo r c e a b le . C. S e c t i o n 301 of the LMRA Preempts Espinoza's Suit E s p in o z a also argues that the district court erred when it held that § 301 o f the LMRA preempts her claims because they are neither "inextricably in t e r t w in e d " with the terms of the CBA, nor do they require interpretation of the C B A . Section 301 of the LMRA does not specifically address preemption; rather, it provides federal jurisdiction for suits involving CBA disputes.4 The Supreme C o u r t , however, has held that "§ 301 expresses a federal policy that the s u b s t a n t iv e law to apply in § 301 cases is federal law, which the courts must fa s h io n from the policy of our national labor laws," Allis-Chalmers Corp. v. L u e c k , 471 U.S. 202, 209 (1985) (citation and internal quotation marks omitted), a n d that the "dimensions of § 301 require the conclusion that substantive p r in c ip le s of federal labor law must be paramount in the areas covered by the s t a t u t e [so that] issues raised in suits of a kind covered by § 301 [are] to be d e c id e d according to the precepts of federal labor policy." Id. (quoting Teamsters v . Lucas Flour Co., 369 U.S. 95, 103 (1962)). As noted by the Allis-Chalmers

"Suits for violation of contracts between an employer and a labor organization representing employees . . . 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).

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No. 09-11170 C o u r t , "[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. The Allis-Chalmers Court, however, went further, stating "[i]f the policies t h a t animate § 301 are to be given their proper range, . . . the pre-emptive effect o f § 301 must extend beyond suits alleging contract violations." Id. In other w ords: [Q ]u e s t io n s relating to what the parties to a labor agreement a g r e e d , and what legal consequences were intended to flow from b r e a c h e s of that agreement, must be resolved by reference to u n ifo r m federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort." Id. at 211. Noting that "not every dispute concerning employment, or

t a n g e n t ia lly involving a provision of a collective-bargaining agreement, is p r e -e m p t e d by § 301," id., the Supreme Court defined the contours of § 301 p r e e m p t io n , holding that "state-law rights and obligations that do not exist in d e p e n d e n t ly of private agreements, and that as a result can be waived or a lt e r e d by agreement of private parties, are pre-empted by those agreements." I d . at 213. The Supreme Court then directed courts to inquire as to "whether e v a lu a tio n of [a] tort claim is inextricably intertwined with consideration of the t e r m s of the labor contract." Id. We have elaborated on these general principles in the context of a n e g lig e n c e suit by an employee against an employer, holding that "such p r e e m p t io n occurs when a decision on the state claim is inextricably intertwined w it h consideration of the terms of the labor contract or when the application of s t a t e law to a dispute requires interpretation" of a CBA. Richter v. Merchants F a s t Motor Lines, Inc., 83 F.3d 96, 97 (5th Cir. 1996) (per curiam). We also held t h a t "[t]o determine if adjudicating the claim requires interpreting the terms of a CBA, a court is required first to analyze the elements of the tort at issue." Id. In Richter, a trucker permanently injured himself in a slip and fall accident 14

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No. 09-11170 w h ile working, and sued his employer for negligence and gross negligence. Id. After noting that "[t]he CBA at issue provide[d] the exclusive remedy for settling d is p u t e s involving negligence on the part of the Company," and that it also s t a t e d that "in any proceeding concerning an injury . . . sustained in the course o f employment . . . the Company further agrees to waive its common law d e fe n s e s ," we found that "the application of state law requires interpretation of t h e " CBA, and thus held that § 301 of the LMRA preempted the employee's n e g lig e n c e claim. Id. at 97­98. O u r decision in Navarro v. Excel Corp., No. 01-11508, 2002 WL 31049478 (5 t h Cir. Sept. 5, 2002) (per curiam) (unpublished), also carries significant p e r s u a s iv e force. The plaintiff in Navarro injured her arm while working, and s u e d her employer for negligence. Id. at *1. We were presented with the

q u e s t i o n of "whether adjudicating [the employee's] negligence claim would r e q u ir e a court to interpret or apply the terms of the CBA." Id. We noted that " t h e CBA requires [the employer] to create safety and grievance committees, a llo w paid rest periods, and give employees protective equipment," and that " [p ]r o c e d u r a lly , the CBA provides compensation and remedial procedures, in c lu d in g arbitration, to resolve workplace injury claims." Id. Although the e m p l o y e e did not "allege a breach of the CBA, a court still would have to d e t e r m in e the scope of [the employer's] duties and [the plaintiff's] remedies u n d e r the CBA in order to define the scope of [the employer's] legal duty for p u r p o s e s of a negligence claim." Id. Therefore, we held that § 301 of the LMRA p r e e m p t e d the employee's suit. Id. Here, Espinoza brought Texas state law claims for negligence, requiring a s assessment of (1) Cargill's legal duty, (2) whether Cargill breached that duty, a n d (3) whether damages were proximately caused by that breach. IHS Cedars

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No. 09-11170 T r e a tm e n t Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).5 T h e CBA acknowledges Cargill's responsibility to provide a safe workplace, c o r r e c t unsafe conditions, institute a safety committee, and provide a grievance c o m m itte e . Additionally, the CBA details the procedure and scope of the

r e m e d ie s available to Cargill employees injured while working. Because "a court w o u ld still have to determine the scope" of Cargill's duties--such as its duty u n d e r the CBA to provide safety committees and ameliorate unsafe c o n d itio n s -- a n d Espinoza's "remedies under the CBA[,] in order to define the s c o p e of" Cargill's "legal duty for purposes of a negligence claim," it follows that E s p in o z a 's claims will involve an interpretation of the terms of the CBA. See N a v a r r o , 2002 WL 31049478, at *1. Espinoza's arguments to the contrary are unavailing. The CBA does not " m e r e ly acknowledge[] Cargill's duty to provide a safe workplace for its e m p lo y e e s " ; instead, it helps define that duty by mandating such things as plant in s p e c t io n s , safety committees for each shift, and the provision of safety e q u ip m e n t . Likewise, Espinoza is incorrect when she posits that "[t]he CBA has n o bearing on Cargill's duties as an employer in this situation"; rather the CBA " im p o s e s duties" on Cargill. Id. (emphasis added). The question is not, as

E s p in o z a suggests, whether a duty "emanates from Texas law" or from contract; it is whether "state-law rights and obligations . . . exist independently of private a g r e e m e n ts ." Allis-Chalmers Corp., 471 U.S. at 213. Because the duty giving r is e to Espinoza's state law negligence claim, as well as her available remedies fo r Cargill's alleged breach of that duty, will involve an interpretation of the C B A , we hold that § 301 of the LMRA preempts Espinoza's state law claims.

Espinoza provides no analysis regarding the elements of her gross negligence claim, save for mentioning that she included it in her complaint. We thus find that she waived any arguments as to § 301 of the LMRA's preemption of this claim. FED. R. APP. P. 28(a)(5); see Chevron USA, Inc. v. Aker Maritime, Inc., 604 F.3d 888, 865 n.6 (5th Cir. 2010) (citing L & A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994)).

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No. 09-11170 D. E s p i n o z a 's Failure to Follow the Claims Procedure under the Plan a n d the CBA Bars her Suit E s p in o z a argues that the district court erred when it held that her failure t o follow the claims procedure in the Plan or the arbitration provision of the CBA p r e c lu d e s her suit. First, Espinoza reiterates her argument that the pre-injury w a iv e r of her right to sue in the CBA is void and unenforceable. She then notes t h a t the Plan only addresses claims for Plan benefits, and because she seeks d a m a g e s , she argues that the Claims Procedure does not apply. Finally,

E s p in o z a argues that she no longer worked for Cargill when she filed her suit, a n d thus the Claims Procedure could not protect her. Espinoza's arguments are without merit. We have determined that her w a iv e r was valid, and her election into the Plan meant that she was entitled o n ly to Plan benefits to remedy her injury. Her choice also had the effect of m a n d a t in g that the Plan, the CBA, and the Claims Procedure govern any g r ie v a n c e s Espinoza raised concerning the administration of the Plan's benefits. A s such, Espinoza's contention that she does not seek Plan benefits t h r o u g h her cause of action is immaterial; Espinoza had no legal right to a n y t h in g except Plan benefits. Additionally, her argument that she no longer h a s access to the Claims Procedure is misleading. As noted by Cargill,

E s p in o z a 's alleged cause of action accrued while Cargill employed her, making h e r subject to the procedural requirements of the Plan and the CBA, and her t e r m i n a t io n six months later affected neither her rights nor her procedural r e q u ir e m e n t s , and certainly did not affect the waiver of her right to sue in tort. Because the CBA provides the only mechanism for adjudicating her claim, and b e c a u s e Espinoza concedes that she did not avail herself of the Claims P r o c e d u r e , we find that Espinoza's claims are precluded.

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No. 09-11170 I V . CONCLUSION E s p in o z a waived her right to sue Cargill for work-related injuries, and u n d e r Texas labor law, her waiver is valid and enforceable. Because the Union a ls o had the authority to waive her right to sue, the Union's waiver in the CBA is also valid and enforceable. Additionally, § 301 of the LMRA bars Espinoza's s t a t e law tort claim because adjudication of Cargill's duty and Espinoza's r e m e d ie s will involve interpreting the terms of the CBA. Finally, Espinoza's suit is barred because she failed to exhaust the Claims Procedure. For these reasons, w e affirm the district court's grant of summary judgment in favor of Cargill. AFFIRMED.

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