Harris v. Gardner Denver Thomas Inc et al
RULING re 13 MOTION for Summary Judgment filed by Erick Stoor, Gardner Denver Thomas Inc. Signed by Judge Robert G James on 10/16/2017. (crt,Crick, S)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 17-931
JUDGE ROBERT G. JAMES
THOMAS, INC., ET AL.
MAGISTRATE JUDGE KAREN
Before the Court is a Motion for Summary Judgment [Doc. No. 13] filed by Defendants
Gardner Denver Thomas, Inc. (“Gardner Denver”) and Erick Stoor. Plaintiff Michael Harris does
not oppose the motion. For reasons assigned below, the motion is GRANTED.
FACTS AND PROCEDURAL HISTORY
Gardner Denver hired Harris as an employee on April 26, 2010. While employed, Harris was
a member of a collective bargaining unit, which operated under a collective bargaining agreement
(“CBA”) between Gardner Denver and Communications Workers of America (“the Union”).
On July 6, 2016, Harris was accused of peeping under the men’s restroom stall at a coworker.
Gardner Denver investigated and verified the accusation. Having verified the allegation and having
warned Harris twice before about similar conduct, Gardner Denver found just cause to, and did,
discharge Harris on July 8, 2016.
Recording the findings of the investigation on a Disciplinary Action Notice form, Kayce
Creighton, Human Resources Generalist, wrote: “Mr. Harris was in the restroom attempting to look
under the stall at another employee. This immoral and sexual deviant behavior is unacceptable and
will not be tolerated. Gardner Denver makes every effort for a safe work environment and this
behavior is a direct violation.” [Doc. No. 13-4].
Under Articles 3 and 8 of the CBA, Gardner Denver may discharge an employee for “just
cause.” [Doc. No. 13-3, pp. 6, 9]. Article 8 provides, “The question of whether ‘just cause’ exists
for the discipline shall be subject to the grievance and arbitration procedure provided herein.” Id.
at 9. Under Article 21, “an employee who is discharged must process his/her grievance” through
the first three tiers. Id. at 24. Following that, a discharged employee must submit his grievance to
arbitration. Id. at 23.
Harris processed his grievances—which he described as “false accusations of sexual
harassment” and “discrimination”—through the third tier of the grievance process. [Doc. No. 13-5].
On July 14, 2016, Debra Priebe, Gardner Denver’s Manager of Human Resources, denied Harris’s
grievance at the third tier, noting, “Termination will stand . . . .” Id.
There is no evidence, however, that Plaintiff asked the Union to submit his grievances to
arbitration within the requisite time period. Article 22 of the CBA provides: “The Union, after
properly utilizing all steps of the Grievance Procedure and desiring to submit a matter to arbitration,
shall notify the Company in writing within the aforementioned thirty (30) calendar days.” [Doc. No.
13-3, p. 23]. The “aforementioned thirty (30) calendar days” refers to Article 21, which provides
that a tier-three decision is final unless the Union notifies “the Company in writing within thirty (30)
days that it desires to submit the matter to arbitration.” Id. at 24. As Harris did not ask the Union
to submit his grievances to arbitration, the grievances were deemed waived under the terms of the
CBA. Id. at 23.
On June 30, 2017, Harris filed suit in the Fourth Judicial District Court, Parish of Ouachita,
State of Louisiana, and alleged, under state law, that Defendants wrongfully terminated him,
defamed him, and subjected him to emotional distress. [Doc. No. 1-2]. On July 20, 2017,
Defendants removed the proceeding to this Court, grounding federal question jurisdiction on the
contention that Harris’s claims are preempted under the Labor Management Relations Act
(“LMRA”). [Doc. No. 1].
On September 13, 2017, Defendants moved for summary judgment, arguing that Harris’s
claims are preempted under Section 301 of the LMRA, that Harris “cannot bring tort claims under
Section 301[,]” that Harris failed to exhaust all remedies under the CBA before filing suit, and that
Harris’s claims are time barred. Harris did not respond to Defendants’ motion or otherwise
controvert Defendants’ properly supported statement of
material facts [Doc. No. 13-1].
Consequently, all material facts that Defendants proffer are deemed admitted. LR 56.2.
LAW AND ANALYSIS
Standard of Review
Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary judgment,
identifying each claim or defense—or the part of each claim or defense—on which summary
judgment is sought. The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The moving party bears the initial burden of informing the court of the basis for its motion by
identifying portions of the record which highlight the absence of genuine issues of material fact.
Topalian v. Ehrmann, 954 F.2d 1125, 1132 (5th Cir. 1992); see also FED. R. CIV. P. 56(c)(1) (“A
party asserting that a fact cannot be . . . disputed must support the assertion by . . . citing to particular
parts of materials in the record . . . .”). Even if the motion is unopposed, the Court may not grant a
motion for summary judgment unless the moving party meets its initial burden. Hetzel v. Bethlehem
Steel Corp., 50 F.3d 360, 362 (5th Cir. 1995).
A fact is “material” if proof of its existence or nonexistence would affect the outcome of the
lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute about a material fact is “genuine” if the evidence is such that a reasonable fact finder could
render a verdict for the nonmoving party. Id.
Harris’s Claims are Preempted.
Defendants maintain that 29 U.S.C. § 185(a) (“Section 301”) preempts Harris’s state law
claims. [Doc. No. 14, p. 10]. Addressing that Section, the Fifth Circuit thoroughly explained:
Section 301 of the LMRA does not specifically address preemption; rather, it
provides federal jurisdiction for suits involving CBA disputes.1 The Supreme Court,
however, has held that “§ 301 expresses a federal policy that the substantive law to
apply in § 301 cases is federal law, which the courts must fashion from the policy of
our national labor laws,” Allis–Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105
S.Ct. 1904, 85 L.Ed.2d 206 (1985) (citation and internal quotation marks omitted),
and that the “dimensions of § 301 require the conclusion that substantive principles
of federal labor law must be paramount in the areas covered by the statute [so that]
issues raised in suits of a kind covered by § 301 [are] to be decided according to the
precepts of federal labor policy.” Id. (quoting Teamsters v. Lucas Flour Co., 369 U.S.
95, 103, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962)). As noted by the Allis–Chalmers Court,
“[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 that
animate § 301 are to be given their proper range, . . . the preemptive effect of § 301
must extend beyond suits alleging contract violations.” Id. In other words:
“[Q]uestions relating to what the parties to a labor agreement agreed, and
what legal consequences were intended to flow from breaches of that
agreement, must be resolved by reference to uniform federal law, whether
such questions arise in the context of a suit for breach of contract or in a suit
“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.A. § 185(a).
alleging liability in tort.”
Id. at 211, 105 S.Ct. 1904. Noting that “not every dispute concerning employment,
or tangentially involving a provision of a collective-bargaining agreement, is
pre-empted by § 301,” id., the Supreme Court defined the contours of § 301
preemption, holding that “state-law rights and obligations that do not exist
independently of private agreements, and that as a result can be waived or altered by
agreement of private parties, are pre-empted by those agreements.” Id. at 213, 105
S.Ct. 1904. The Supreme Court then directed courts to inquire as to “whether
evaluation of [a] tort claim is inextricably intertwined with consideration of the terms
of the labor contract.” Id.
We have elaborated on these general principles in the context of a negligence suit by
an employee against an employer, holding that “such preemption occurs when a
decision on the state claim is inextricably intertwined with consideration of the terms
of the labor contract or when the application of state law to a dispute requires
interpretation” of a CBA. Richter v. Merchants Fast Motor Lines, Inc., 83 F.3d 96,
97 (5th Cir.1996) (per curiam). We also held that “[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.
Espinoza v. Cargill Meat Sols. Corp., 622 F.3d 432, 442-43 (5th Cir. 2010).
Here, Harris alleges state law claims of wrongful discharge, defamation, and intentional
infliction of emotional distress. [Doc. No. 1-2]. Harris’s wrongful discharge claim is, without
doubt, inextricably intertwined with consideration of the terms of the CBA. Harris does not allege
that Defendants discharged him because of discriminatory or retaliatory reasons.2 Rather, after
reciting Defendants’ alleged just cause, he simply alleges that Defendants terminated him
“wrongfully,” which is tantamount to alleging that Defendants lacked just cause to terminate him.
Adjudicating this claim will therefore require the Court to examine whether, under Articles 3 and
In Louisiana, “A man is at liberty to dismiss a hired servant attached to his person or
family, without assigning any reason for so doing.” LA. CIV. CODE art. 2747. “As long as the
termination does not violate any statutory or constitutional provisions,” the employer is without
liability. Fletcher v. Wendelta, Inc., 43,866 (La. App. 2 Cir. 1/14/09), 999 So. 2d 1223, 1230.
“The at-will doctrine provides a shield to employers so significant that only a few instances
provide exception to the protection.” Id.
8 of the CBA, Gardner Denver had “just cause” to discharge Harris. [See Doc. No. 13-3, pp. 6,9].
This claim is preempted.3
Harris’s defamation and emotional distress claims are likewise preempted. Notably, Harris
grounds his claims in the exact language that the human resources generalist used to describe the
findings of her investigation: “Petitioner was in the restroom attempting to look under the stall at
another employee. This immoral and sexual deviant behavior is unacceptable and will not be
tolerated. Gardner Denver makes every effort for a safe work environment and this behavior is a
direct violation.” [C.f. Doc. Nos. 1-2, p. 5; 13-4]. In short, Harris alleges that Gardner Denver’s just
cause for termination amounts to defamation and intentional infliction of emotional distress. To the
extent Harris claims that Gardner Denver’s stated reasons for discharge do not amount to “good
cause,” the Court must necessarily consider and interpret the CBA.
Adjudicating the defamation and emotional distress claims will also require the Court to
interpret the grievance, discharge, and management provisions of the CBA. To prevail on his
defamation claim Harris must demonstrate: “(1) a false and defamatory statement concerning
another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part
of the publisher; and (4) resulting injury.” Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669,
674 (La. 2006). To prevail on his intentional infliction of emotional distress claim, Harris must
demonstrate: “(1) that the conduct of the defendant was extreme and outrageous; (2) that the
emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict
See Jones v. Turner, 2013 WL 6000594, at *3 (E.D. La. Nov. 12, 2013) (holding that
the plaintiff’s wrongful discharge claim was preempted because, “in order to determine whether
plaintiff was wrongfully discharged, the Court would have to interpret the CBA because that
document sets forth the method of assessing whether a discharge was proper.”).
severe emotional distress or knew that severe emotional distress would be certain or substantially
certain to result from his conduct.” White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991).
To adjudicate these claims, considering that Harris’s grounds for the claims are the reasons
Gardner Denver cited in its answer to Harris’s third-tier grievance as just cause for discharging him,4
the Court would have to interpret both the grievance procedure and the discharge provisions in the
CBA.5 The Court would also have to interpret the “Management Rights” portion of the CBA, which
provides that the management has the right to “relieve employees from duties” and to “discharge
employees for just cause.”6
Harris does not allege that Defendants defamed or inflicted emotional distress in any
way other than discharging him and stating the reasons for discharge. See Baker v. Farmers
Elec. Co-op., Inc., 34 F.3d 274, 280 (5th Cir. 1994) (holding that a claim of intentional infliction
of emotional distress was preempted because the plaintiff did not “allege that any action on the
part of the defendants other than his reassignment to a maintenance position  caused him
See Strachan v. Union Oil Co., 768 F.2d 703, 706 (5th Cir. 1985) (considering the
plaintiffs’ assertion that the employer’s suspension and investigation procedure had defamed
them by virtue of other employees’ learning of the investigations and reasoning, “To hold the
company guilty of defamation for making such inquiries, even though they become known in the
plant, would simply mean that the company could never undertake to investigate a possible
disciplinary situation in routine and proper ways . . . .”); Bagby v. Gen. Motors Corp., 976 F.2d
919, 922 (5th Cir. 1992) (holding that claims of intentional infliction of emotional distress and
defamation based on acts “unquestionably taken in accordance with provisions of the CBA” were
preempted under the LMRA); Stafford v. True Temper Sports, 123 F.3d 291, 296 (5th Cir. 1997)
(noting that state law claims of intentional infliction of emotional distress and defamation are
preempted if the claims relate to a dispute over whether the plaintiff’s dismissal was appropriate
or whether the employer’s actions in investigating and sanctioning alleged misconduct were
reasonable); Davis v. Kroger Texas LP, 429 F. App’x 376 (5th Cir. 2011) (holding that claims of
fraud and defamation, stemming from an allegation that company records did not accurately
reflect an employee’s seniority dates, were preempted because the complained-of events were
covered by a collective bargaining agreement that addressed seniority and termination).
See Baker, 34 F.3d at 280 (finding a claim of intentional infliction of emotional distress
preempted because the grounds for the claim were reassignment to another position and the CBA
granted management the right to reassign employees).
As there are no genuine disputes of material fact, Harris’s state law claims are preempted in
favor of applying uniform principles of federal labor law. As a result, the Court must either treat
Harris’s claims as Section 301 claims or dismiss them as preempted. Allis-Chalmers Corp., 471
U.S. at 220.
Harris Failed to Exhaust the Grievance Procedures in the CBA.
Treating Harris’s claims as Section 301 claims, they must be dismissed because he failed to
exhaust the grievance procedures in the CBA. “[F]ederal labor policy requires that individual
employees wishing to assert contract grievances must attempt use of the contract grievance
procedure agreed upon by employer and union as the mode of redress.” Republic Steel Corp. v.
Maddox, 379 U.S. 650, 652 (1965); see Parham v. Carrier Corp., 9 F.3d 383, 390 (5th Cir. 1993)
(“In the section 301 context, federal law ordinarily requires a plaintiff to exhaust grievance
procedures established in a collective bargaining agreement before filing a claim in court.”);
Strachan, 768 F.2d at 704 (“The law is completely clear that employees may not resort to state tort
or contract claims in substitution for their rights under the grievance procedure in a collective
Here, it is undisputed that the CBA contains a four-tiered grievance and arbitration process8
The Fifth Circuit recognizes the following three exceptions to the exhaustion
requirement: “(1) the union wrongfully refuses to process the employee’s grievance, thus
violating its duty of fair representation; (2) the employer’s conduct amounts to a repudiation of
the remedial procedures specified in the contract; or (3) exhaustion of contractual remedies
would be futile because the aggrieved employee would have to submit his claim to a group which
is in large part chosen by the (employer and union) against whom (his) real complaint is made.”
Rabalais v. Dresser Indus., Inc., 566 F.2d 518, 519 (5th Cir. 1978) (internal quotation marks,
quoted sources, and citations removed). No exception is in dispute here.
The procedure is the exclusive and final remedy for aggrieved employees: “All
decisions . . . on grievances shall be final and binding . . . .” [Doc. No. 13-3, p. 24]; see Daigle v.
[Doc. No. 13-3, pp. 23-24], and that Harris failed to ask the Union to submit his claim to arbitration
[Doc. Nos. 13-1, p. 3; 13-2, p. 3].9 Moreover, it is undisputed that the time for submitting his claims
to arbitration expired: the personnel manager rendered a tier-three decision on July 14, 2016, Harris
had thirty days to inform Gardner Denver that he desired to arbitrate his grievances,10 and Harris
never requested arbitration.
Because the time for submitting his grievances to arbitration has passed, Harris cannot
exhaust the grievance and arbitration procedure, and he cannot re-file the instant claims.
Considering Defendants’ properly supported motion, as well as Harris’s lack of opposition, the Court
finds that there is no genuine dispute of material fact and that Defendants are entitled to judgment
as a matter of law.11 See Bagby, 976 F.2d at 922 (holding that state law claims against employer for
defamation and intentional infliction of emotional distress were preempted and that employee could
not pursue his claims because he had failed to use the grievance procedure prescribed in the
Gulf State Utilities Co., Local Union No. 2286, 794 F.2d 974, 977 (5th Cir. 1986) (“If the
arbitration and grievance procedure is the exclusive and final remedy for breach of the collective
bargaining agreement, the employee may not sue his employer under § 301 until he has
exhausted the procedure . . . .”).
Harris does not allege that the Union breached its duty of fair representation. In other
words, he does not contend that he requested the Union to submit his grievances to arbitration
and the Union refused or failed to do so.
To reiterate, Article 22 of the CBA provides: “The Union, after properly utilizing all
steps of the Grievance Procedure and desiring to submit a matter to arbitration, shall notify the
Company in writing within the aforementioned thirty (30) calendar days.” [Doc. No. 13-3, p. 23].
The “aforementioned thirty (30) calendar days” refers to Article 21, which provides that a tierthree decision is final unless the Union notifies “the Company in writing within thirty (30) days
that it desires to submit the matter to arbitration.” Id. at 24.
The Court need not reach Defendants’ arguments that Harris “cannot bring torts claims
under Section 301” and “cannot timely assert a Section 301 claim.” [See Doc. No. 13, p. 1].
collective bargaining agreement).
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED, and
Harris’s claims are DISMISSED WITH PREJUDICE.12
MONROE, LOUISIANA, this 16th day of October, 2017.
See Baker, 34 F.3d at 285 (dismissing a plaintiff’s claims with prejudice because, in
part, the plaintiff failed to timely exhaust his available grievance procedures).
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