Dana Paul v. Kaiser Permanente

Filing

OPINION and JUDGMENT filed: district court's denial of plaintiff's motion to remand to state court is REVERSED and the case is REMANDED to the district court with instructions to remand the case to the state court. The district court's award of judgment on the pleadings is VACATED, decision for publication. Gilbert S. Merritt, David W. McKeague (AUTHORING), and Jane Branstetter Stranch, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 12a0404p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 11-4217
v.
>
,
KAISER FOUNDATION HEALTH PLAN OF OHIO, Defendant-Appellee. N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:10-cv-1594—Lesley Brooks Wells, District Judge.

DANA PAUL,

Plaintiff-Appellant,

Argued: October 2, 2012
Decided and Filed: December 11, 2012
Before: MERRITT, McKEAGUE and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Daniel P. Petrov, THORMAN & HARDIN-LEVINE CO., LPA, Cleveland,
Ohio, for Appellant. George S. Crisci, ZASHIN & RICH CO., L.P.A., Cleveland, Ohio,
for Appellee. ON BRIEF: Daniel P. Petrov, THORMAN & HARDIN-LEVINE CO.,
LPA, Cleveland, Ohio, for Appellant. George S. Crisci, Patrick M. Watts, ZASHIN &
RICH CO., L.P.A., Cleveland, Ohio, for Appellee.
_________________
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
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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

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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

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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

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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 F. App’x 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 (1987). . . . Our review
of whether federal-question jurisdiction exists is governed by the wellpleaded 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.
****
“[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 (2003). And while 28 U.S.C. § 1331 provides a district court general
federal question jurisdiction, there are also more specific jurisdictionconferring provisions, including § 301 of the LMRA, see 61 Stat. 156,
§ 301, codified at 29 U.S.C. § 185(a), which both preempts certain statelaw 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 (1998); Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 220 (1985).
****
The Supreme Court has thus held that when “resolution of a statelaw 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 (internal citations
omitted).
****

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Because “[§] 301 governs claims founded directly on rights
created by [labor contracts], and also claims ‘substantially dependent on
analysis of a [labor contract],’” Caterpillar, 482 U.S. at 394, our Court
has created a two-step test for determining whether a plaintiff’s claims
are preempted by § 301:
First, courts must determine whether resolving the statelaw claim would require interpretation of the terms of the
[labor contract]. If so, the claim is preempted. Second,
courts must ascertain whether the rights claimed by the
plaintiff were created by the [labor contract], or instead
by state law. If the rights were created by the [labor
contract], the claim is preempted. In short, if a state-law
claim fails either of these two requirements, it is
preempted by § 301.
Mattis v. Massman, 355 F.3d 902, 906 (6th Cir. 2004) (citing DeCoe v.
Gen. Motors Corp., 32 F.3d 212, 216 (6th Cir. 1994)).
Kitzmann, 415 F. App’x at 716–18.
Applying these standards, the district court held that plaintiff’s claims that Kaiser
denied her reasonable accommodation, despite asserting rights created by state law,
implicated interpretation of the CBA. This was found to be so because Kaiser said it
relied on CBA constraints in determining that it was unable to assign plaintiff to a shift
that would ensure she would not find herself working as the only CT/Rad Technologist
in diagnostic x-ray. Assessing the reasonableness of Kaiser’s refusal to accommodate
plaintiff’s disability, the court concluded, would therefore require interpretation of the
CBA terms.
Ordinarily, the district court’s denial of plaintiff’s motion to remand would be
reviewed de novo. Village of Oakwood v. State Bank & Trust Co., 539 F.3d 373, 377
(6th Cir. 2008). Indeed, evaluation of plaintiff’s allegations under the well-pleaded
complaint rule would appear to present a pure question of law. Plaintiff, as master of her
claims, is entitled to assert her claims for relief exclusively under state law. However,
if resolution of her claims is “substantially” dependent on analysis of terms of the CBA,
see Allis-Chalmers, 471 U.S. at 220, then her claims are subject to complete preemption.
The district court was thus required to look beyond the face of plaintiff’s allegations and

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the labels used to describe her claims and had to evaluate the substance of plaintiff’s
claims. Insofar as the district court went beyond the allegations of the complaint and
inquired into the factual predicates for jurisdiction, any fact-findings integral to its ruling
that complete preemption was triggered and federal jurisdiction established are reviewed
for clear error. See Lovely v. United States, 570 F.3d 778, 781-82 (6th Cir. 2009). Such
deference is accorded only to the extent the district court actually made factual findings.
Id. Kaiser, the removing party, had the burden of establishing federal subject matter
jurisdiction. Village of Oakwood, 539 F.3d at 377.
2. Smolarek v. Chrysler Corp.
Notwithstanding plaintiff’s assertion of exclusively state-law claims, Kaiser
contends the district court correctly recognized that disposition of plaintiff’s claims will
necessarily entail interpretation of CBA terms. This is so, Kaiser maintains, because
both the disability-based discrimination and retaliation claims stem from Kaiser’s refusal
to grant plaintiff accommodating conditions of employment due to constraints imposed
by the terms of the CBA.

Plaintiff does not deny that she requested accommodation

for her back-surgery-related impairment, but she (a) denies she requested the shiftchange accommodations that Kaiser denied, and (b) denies that evaluation of the
reasonableness of the accommodation she requested would require interpretation of CBA
terms.
Review of governing Sixth Circuit precedents must begin with a ruling that is
conspicuously omitted from the district court’s opinion, Smolarek v. Chrysler Corp.,
879 F.2d 1326 (6th Cir. 1989) (en banc). The Smolarek court reversed the lower court’s
denial of a motion to remand and held that two employees’ state-law claims for
disability-based discrimination and retaliation were not subject to complete preemption
under the LMRA.1 The Smolarek majority focused on the allegations of the complaint
1

Although the Smolarek court was divided regarding preemption of the plaintiffs’ discrimination
claims, all judges summarily agreed that plaintiffs’ retaliation claims did not implicate interpretation of
CBA terms. Here, too, Kaiser has clearly failed to show how plaintiff’s retaliation claim (i.e., that Kaiser
retaliated against her for complaining about disability-based discrimination), standing on its own,
implicates interpretation of the CBA. Nor did the district court address the retaliation claim independently
of the discrimination claim. It is apparent that plaintiff’s retaliation claim rises and falls with her

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and observed that the claim for violation of a state statute asserted a right not derived
solely from the CBA. Id. at 1332-33. The fact that the CBA may have provided a
remedy for the same misconduct was deemed insufficient to trigger preemption where
the plaintiff had chosen not to seek relief under the CBA, but had proceeded exclusively
under the state statute. Id. The fact that the employer might assert terms of the CBA
as a defense to the claim was held not to overcome the paramount policies of the wellpleaded complaint rule and was held not to trigger preemption. Id. at 1333-34 (citing
Caterpillar Inc. v. Williams, 482 U.S. 386, 398-99 (1987)).
All of these considerations apply with equal force in this case. Plaintiff’s
complaint explicitly asserts rights exclusively under Ohio’s anti-discrimination civil
rights law. The CBA is not mentioned in the complaint. Though the CBA includes
assurance against handicap-based discrimination and provides that discrimination claims
arising from application of CBA provisions shall be settled pursuant to the CBA
grievance procedures, plaintiff’s complaint does not invoke rights or procedures under
the CBA. Plaintiff had pursued her grievance remedies under the CBA through step
three, but chose not to pursue CBA remedies in her complaint, which alleges violations
of state anti-discrimination law. Here, too, as in Smolarek, terms of the CBA are
invoked only by Kaiser in defense of plaintiff’s claims and as justification for its actions.
Kaiser’s reliance on the CBA as a defense is, in itself, insufficient to trigger preemption.
See Fox v. Parker Hannifin Corp., 914 F.2d 795, 800 (6th Cir. 1990) (“[A] defendant’s
reliance on a CBA term purely as a defense to a state law claim does not result in section
301 preemption.”)
It is noteworthy that seven judges dissented from the Smolarek holding that the
disability-based discrimination claim was not subject to complete preemption under the
LMRA. Critical to the dissent, however, was the fact that Smolarek’s complaint, on its
face, sought relief under the CBA, i.e., “reinstatement to ‘his former position or another

discrimination claim. Preemption of the retaliation claim is appropriate, if at all, only as a function of
supplemental jurisdiction if plaintiff’s discrimination claim is properly deemed preempted. See Kitzmann,
415 F. App’x at 720 (recognizing operation of supplemental jurisdiction to include state law claims joined
to preempted claims). Accordingly, our analysis of the preemption issue focuses on the discrimination
claim.

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position consistent with his medical restrictions.’” Smolarek, 879 F.2d at 1336
(Kennedy, J., dissenting) (emphasis in original). Here, in contrast, plaintiff’s complaint
requests relief in the form of compensatory and punitive damages, attorney’s fees and
costs, and any equitable relief deemed appropriate. This distinction underscores the fact
that plaintiff is not asking the court to manage her CBA-governed relationship with her
employer, but is asking for enforcement of rights under state anti-discrimination law
independent of the CBA.
Plaintiff thus correctly argues that Smolarek supports reversal of the district
court’s denial of her motion to remand. Kaiser’s attempt to distinguish Smolarek is not
persuasive. Smolarek is still authoritative. Its teaching may have been narrowed or
clarified by subsequent rulings, but it is not easily distinguishable on the facts and
circumstances of this case. See, e.g., Klepsky v. United Parcel Serv., 489 F.3d 264, 26970 (6th Cir. 2007) (citing Smolarek with approval but finding preemption triggered
because plaintiff’s prayer for reinstatement required interpretation of CBA terms); Mattis
v. Massman, 355 F.3d 902, 907 (6th Cir. 2004) (citing Smolarek with approval but
distinguishing it and finding preemption triggered where rights asserted were established
by CBA rather than by “external regime of state law” prohibiting handicap
discrimination). Neither of the distinguishing circumstances noted in Klepsky and Mattis
is presented in this case.

Unlike Klepsky, plaintiff’s complaint does not seek

reinstatement. Unlike Mattis, plaintiff’s complaint asserts rights established by an
external regime of state law, not by the CBA. By negative implication, Klepsky and
Mattis serve to buttress the conclusion that Smolarek governs and militates against
preemption.
3. “Inextricably Intertwined” vs. “Tangentially Related”
Yet, Kaiser’s position is not without support. Kaiser correctly argues that the
relationship in which it is alleged to have unlawfully discriminated against plaintiff is
undeniably created and governed by the CBA. After all, § 301 preemption is designed
“to ensure uniform interpretation of collective-bargaining agreements, and thus to
promote the peaceable, consistent resolution of labor-management disputes.” Lingle v.

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Norge Div. of Magic Chef, Inc., 486 U.S. 399, 404 (1988). “[I]f the resolution of a statelaw claim depends upon the meaning of a collective-bargaining agreement, the
application of state law (which might lead to inconsistent results since there could be as
many state-law principles as there are States) is pre-empted and federal labor-law
principles—necessarily uniform throughout the Nation—must be employed to resolve
the dispute.” Id. at 405-06.
In DeCoe v. Gen. Motors Corp., 32 F.3d 212 (6th Cir. 1994), the court
recognized that preemption is required, even though resolution of a state law claim “will
not involve the direct interpretation of a precise term of the CBA,” if it will nonetheless
require the court “to address relationships that have been created through the collective
bargaining process and to mediate a dispute founded upon rights created by a CBA.” Id.
at 218 (quoting Jones v. Gen. Motors Corp., 939 F.2d 380, 382-83 (6th Cir. 1991)). In
determining whether the state law claim requires interpretation of CBA terms, DeCoe
holds that the court is not strictly bound by the well-pleaded complaint rule, but “looks
to the essence of the plaintiff’s claim.” Id. at 216. If the claim can be proven without
the necessity of contract interpretation, it is independent of the CBA. Id. “Moreover,
neither a tangential relationship to the CBA, nor the defendant’s assertion of the contract
as an affirmative defense will turn an otherwise independent claim into a claim
dependent on the labor contract.” Id. Preemption is triggered if resolution of the state
law claim is “inextricably intertwined” with consideration of the terms of the CBA.
Smolarek, 879 F.2d at 1330 (quoting Allis-Chalmers, 471 U.S. at 213).
The preemption question thus depends on whether the essence of plaintiff’s claim
implicates a dispute that is “inextricably intertwined” with interpretation of CBA terms
or whether it is only “tangentially related” to the CBA. The answer to this question
depends largely on how “the essence of plaintiff’s claim” is characterized.

In

determining what is a fair and accurate characterization of the essence of plaintiff’s
claim, we bear in mind that plaintiff is master of her complaint. Yet, Kaiser has the
burden of establishing preemption.

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There can be no question but that plaintiff attempted to state a disability-based
discrimination claim that is independent of the CBA, one that is only tangentially related
to the terms of the CBA and is so related only because her relationship with Kaiser is
governed by the CBA. Her complaint does not refer to any rights under the CBA and
does not even hint at the need to resolve any dispute concerning interpretation of CBA
terms.

Plaintiff has steadfastly and consistently maintained that her request for

accommodation was simply a request that she be assigned diagnostic x-ray duties only
when she would have assistance, as needed, in positioning patients’ bodies—for her
welfare and that of the patients. She did not otherwise specify how her disability could
be accommodated.
Plaintiff’s request gave rise to an interactive discussion in which Kaiser viewed
the request as necessarily implicating need for scheduling changes, changes that would
implicate other employees’ schedules and seniority rights under the CBA. Kaiser has
consistently treated plaintiff’s request for accommodation in this manner despite
plaintiff’s insistence that she had not requested a schedule change and had not, in her
existing schedule, encountered a situation when needed help was not available. Further,
in view of plaintiff’s undisputed statement that the hospital “no lift” policy required all
employees to obtain assistance before moving patients, it remains unclear why Kaiser
treated plaintiff’s request “not to work alone” as impliedly necessitating schedule
changes. Yet, when Kaiser determined that the potentially accommodating schedule
changes it suggested could not be granted without impinging on CBA rights of other
employees, it appears not to have considered any other options for accommodating
plaintiff in the CT/Rad Technologist position. Furthermore, although Kaiser has
identified a handful of CBA provisions that pertain to employee scheduling and seniority
rights, there is no showing that plaintiff ever contested Kaiser’s interpretation of those
terms or asserted other CBA terms bearing on her request.
Plaintiff’s dispute with Kaiser does not stem from any difference about what the
CBA provisions say or how they operate. Rather, she contends the cited CBA
provisions are relevant only to a request for accommodation that she never made. Her

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discrimination claim is premised not on Kaiser’s interpretation and application of those
CBA terms, but on Kaiser’s failure to show that the accommodation she requested was
unduly burdensome.
Accordingly, we conclude that

Kaiser has not carried its burden of

demonstrating grounds for complete preemption of plaintiff’s claim. Although it cannot
be denied that plaintiff’s claim—that Kaiser unlawfully discriminated against her in the
terms and conditions of employment by refusing to reasonably accommodate her
disability—implicates an employment relationship created and defined by the CBA,
Kaiser has not demonstrated that resolution of the claim is so “inextricably intertwined”
with interpretation of CBA terms as to trigger complete preemption. Rather, Kaiser has
shown only that provisions of the CBA are tangentially related to plaintiff’s claim. It
follows that the district court’s denial of plaintiff’s motion to remand was in error and
must be reversed.
4. Attorney’s Fees
Plaintiff has asked for award of fees and costs incurred in responding to Kaiser’s
improper removal of the case. It is within our discretion to award fees and costs under
28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award attorney’s fees
under § 1447(c) only where the removing party lacked an objectively reasonable basis
for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
“Conversely, when an objectively reasonable basis exists, fees should be denied.” Id.
The question of complete preemption under the circumstances of this case is a close one.
It cannot be said that Kaiser lacked an objectively reasonable basis for removal.
Plaintiff’s request for award of fees and costs is therefore denied.
III. CONCLUSION
In sum, the district court’s denial of plaintiff’s motion to remand to state court
is REVERSED and the case is REMANDED to the district court with instructions to
remand the case to the state court. The district court’s award of judgment on the
pleadings is VACATED for lack of jurisdiction.