KEHOE v. THORNTON ACADEMY

Filing 20

ORDER granting 10 Motion to Remand to State Court. By JUDGE NANCY TORRESEN. (MMB)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JILL A. KEHOE,
Plaintiff,
v.
THORNTON ACADEMY,
Defendant.

)
)
)
)
) Docket No. 2:16-cv-491-NT
)
)
)
)

ORDER ON MOTION TO REMAND
Before me is the Plaintiff’s motion to remand to state court her Amended
Complaint asserting sex discrimination in violation of state law. At issue is whether
the Plaintiff’s single remaining claim presents a federal question because it requires
me to interpret a collective bargaining agreement (“CBA”) between the Trustees of
Thornton Academy and the Thornton Academy Teachers Union. CBA (ECF No. 161). If the resolution of the state law claim depends upon the meaning of the CBA, then
the claim is completely preempted by federal labor law. If the state law claim is
independent of the CBA, then I must remand for lack of federal jurisdiction. For the
reasons stated below, I GRANT the Plaintiff’s motion to remand.
PROCEDURAL HISTORY AND THE PARTIES’ POSITIONS
The Plaintiff filed a two-count Complaint in the Maine Superior Court alleging
sex discrimination in violation of the Maine Equal Pay Law, 26 M.R.S.A. § 628, and
breach of the CBA. The Defendant Thornton Academy removed the complaint to this
Court and filed a motion to dismiss. Notice of Removal (ECF No. 1); Def.’s Mot. to

Dismiss (ECF No. 7). The Defendant’s notice of removal asserts that this Court has
federal question jurisdiction over the claims alleged in the complaint under § 301 of
the Labor Management Relations Act (“LMRA”), 29 U.S.C. §§ 141-87. Notice of
Removal 2. In the motion to dismiss, the Defendant argues that the Plaintiff’s claims
are preempted by the LMRA and that an arbitrator’s decision adverse to Ms. Kehoe
is the final and binding resolution of her claims. Def.’s Mot. to Dismiss 5-9.
Approximately a week after the Motion to Dismiss was filed, the Plaintiff filed
an Amended Complaint, in which she dropped her breach of contract claim and
asserted only the sex discrimination claim under the Maine Equal Pay Law. Amended
Compl. (ECF No. 8). Plaintiff then moved to remand her case to state court on the
ground that her sex discrimination claim is not preempted by federal law because it
is not dependent on an interpretation of the CBA. Pl.’s Mot. to Remand (ECF No. 10).
DISCUSSION
I.

The Governing Law
Federal district courts have original jurisdiction over “all civil actions arising

under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “The
gates of federal question jurisdiction are customarily patrolled by a steely-eyed
sentry–the well-pleaded complaint rule . . . .” BIW Deceived v. Local S6, Indus. Union
of Marine & Shipbuilding Workers, 132 F.3d 824, 830 (1st Cir. 1997) (citation
omitted). Under that rule, “federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc.

2

v. Williams, 482 U.S. 386, 392 (1987). The plaintiff, as “master of the claim,” can
“avoid federal jurisdiction by exclusive reliance on state law.” Id.
There is an “independent corollary to the well-pleaded complaint rule known
as the complete pre-emption doctrine,”1 and it has long been applied to § 301 of the
LMRA. Id. at 393 (internal citation and quotations omitted). Section 301 provides
that “[s]uits 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 regard to the amount in controversy or
diversity. 29 U.S.C. § 185(a). The Supreme Court has determined that the
“preemptive force of § 301 is so powerful as to displace entirely any state cause of
action for violation of contracts between an employer and a labor organization. Any
such suit is purely a creature of federal law.” Franchise Tax Board of Cal. v. Constr.
Laborers Vacation Trust for S. Cal., 463 U.S. 1, 23 (1983) (footnote and internal
quotations omitted).
The Supreme Court has expanded the complete preemption doctrine beyond
suits alleging just contract violations in order to prevent plaintiffs from evading the
doctrine of complete preemption by artful pleading. See Allis–Chalmers Corp. v.
Lueck, 471 U.S. 202, 219-20 (1985). “If the resolution of a state-law claim depends

“Complete preemption is distinct from ordinary, or defensive, preemption. It applies where a
purported state claim . . . is re-characterized as a federal claim such that it is said to arise under
federal law and permit removal to federal court.” Rueli v. Baystate Health, Inc., 835 F.3d 53, 57 (1st
Cir. 2016) (internal quotations and citations omitted). “Ordinarily federal pre-emption is raised as a
defense to the allegations in a plaintiff’s complaint,” and since the well-pleaded complaint rule only
focuses on the allegations in a complaint, the existence of a federal defense does not provide the basis
for removal. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-93 (1987).
1

3

upon the meaning of a collective-bargaining agreement, the application of state law
. . . is preempted and federal labor-law principles . . . must be employed to resolve the
dispute.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988)
(emphasis added).
There are two ways that a Plaintiff’s claim can “depend[] upon the meaning of
a collective-bargaining agreement.” Id. at 406. First, “a claim can allege the violation
of a duty that arises from the CBA,” and second, “a claim can require a court to
interpret a specific provision of the CBA.” BIW Deceived, 132 F.3d at 829. The Court
of Appeals for the First Circuit has dubbed these two ways as the “ ‘duty’ rubric” and
the “ ‘interpretation’ rubric.” Id. at 830; see also Rueli v. Baystate Health, Inc., 835
F.3d 53, 58 (1st Cir. 2016) (“claims must either be ‘founded directly on rights created
by collective-bargaining agreements’ or ‘substantially dependent on analysis of a
collective-bargaining agreement’ ” (quoting Caterpillar, 482 U.S. at 394)). Here, the
Defendant argues that the Plaintiff’s sex discrimination claim requires the court to
interpret two provisions of the CBA–Article II (“Teacher Employment”) and Article X
(“Salaries”).
Under the interpretation rubric, I focus on “whether ‘resolution’ of a claim
‘arguably hinges upon an interpretation of the collective bargaining agreement.’ ”
Rueli, 835 F.3d at 58 (quoting Flibotte v. Penn. Truck Lines, Inc., 131 F.3d 21, 26 (1st
Cir. 1997)). In Rueli the First Circuit explained that the qualifier “arguably” is
necessary because at the outset of a case when defendants remove to federal court,
“we cannot know the exact contours of the wage dispute and the precise CBA terms

4

likely to require interpretation cannot be certain.” Id. at 58-59 (quoting Cavallaro v.
UMass Mem’l Healthcare, Inc., 678 F.3d 1, 8 (1st Cir. 2012)). The emphasis under the
interpretation prong is on “the legal character of a claim,” not its underlying facts.
Livadas v. Bradshaw, 512 U.S. 107, 123 (1994).
“Though section 301 is omnipotent within its sphere, it is not endlessly
expansive.” BIW Deceived, 132 F.3d at 830. It does not preempt “nonnegotiable rights
conferred on individual employees as a matter of state law,” Livadas, 512 U.S. at 123,
and “purely factual questions about an employee’s conduct or an employer’s conduct
and motives do not require a court to interpret any term of a collective-bargaining
agreement,” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 261 (1994) (quoting
Lingle, 486 U.S. at 407); see also BIW Deceived, 132 F.3d at 830.
In Lingle, the Supreme Court found that a plaintiff’s state claim for retaliatory
discharge was not preempted even though it was based on the same facts as the
plaintiff’s grievance filed under the collective bargaining agreement’s dispute
resolution provisions for improper discharge. As the Court explained:
even if dispute resolution pursuant to a collective-bargaining agreement, on
the one hand, and state law, on the other, would require addressing precisely
the same set of facts, as long as the state-law claim can be resolved without
interpreting the agreement itself, the claim is “independent” of the agreement
for § 301 preemption purposes.
Lingle, 486 U.S. at 409-10.
II.

Application of the Law to the Facts
With these principles in mind, I consider whether the Plaintiff’s claim under

the Maine Equal Pay Law depends on an interpretation of the CBA. On its face, the
Plaintiff’s Amended Complaint sounds only in Maine law. To make out a claim under
5

the Maine Equal Pay Law, the Plaintiff will have to show that she was paid less than
male employees doing “comparable work on jobs that have comparable requirements
relating to skill, effort and responsibility.” 26 M.R.S.A. § 628. The Plaintiff’s theory
of the case is that valuable benefits and extra (compensable) duties not covered by
the CBA were discriminatorily offered to male employees and were not offered to her.
Pl.’s Mot. to Remand 5.
The Defendant contends that all aspects of the Plaintiff’s pay – from her pay
rate to promotions, increases, and stipends – are governed by the terms and
conditions of the CBA. Def.’s Resp. to Mot. to Remand 3. The Defendant argues that
the Plaintiff’s claim hinges on interpretation of Article II (“Teacher Employment”)2
and Article X (“Salaries”)3 of the CBA. The Plaintiff responds that it will not be
necessary to refer to the CBA to establish her claim, but acknowledges that it may be
necessary to consult the CBA for purposes of determining damages. Reply in Support
of Mot. to Remand 2-3 (ECF No. 18).

The Defendant identifies the pertinent portion of Article II as the following:

2

TEACHER EMPLOYMENT
A. 1. Each teacher shall be placed on his/her proper step of the salary schedule in accordance with
paragraph 2 below and no professional personnel will be hired off scale.
2. Full credit on the Teacher Salary Schedule shall be given for previous full-time outside
teaching experience upon initial employment in accordance with the provisions of Schedule A.
For purposes of this section, a year of teaching experience shall mean at least one hundred
thirty-five (135) days of teaching in a given school year.
CBA 4.
Article X contains Salary Scales (Schedule A) that list steps on a vertical axis and educational
accomplishments (e.g., BA, BA + 15, MA, etc.) on the horizontal access. CBA 27-31. The resulting
charts set forth the salaries to be paid commensurate with the step and educational background each
person has. Article X also contains lists of the “Extra-Curricular Stipends” offered to employees who
serve as advisors, coaches, or coordinators of various sports teams or other activities. CBA 33-38.
3

6

It may well be necessary for the Plaintiff to establish pay rates of male
counterparts and to factor out seniority differentials in order to make her case. But
the Supreme Court has drawn a distinction between a claim that involves
interpretation of the terms of a CBA and one that involves mere reference to those
terms, with only the former requiring complete preemption under § 301 of the LMRA.
“The mere need to ‘look to’ the collective-bargaining agreement for damages
computation is no reason to hold the state-law claim defeated by § 301.” Livadas, 512
U.S. at 125 (quoting Lingle, 486 U.S. at 413 n.12); see also Lueck, 471 U.S. at 211.
The Defendant does not identify any term used in the CBA that is in dispute or that
requires interpretation. Under these circumstances, the limited reference to the CBA
is not sufficient to remove a state law claim on the ground that it is completely
preempted by § 301 of the LMRA.
The essence of the Plaintiff’s claim is that Thornton Academy discriminated
against her based on her gender in violation of a Maine anti-discrimination statute.
The claim is not dependent on any provision of the CBA for its resolution. The Lingle
case is instructive. In Lingle, the plaintiff grieved her discharge as being improper
under a provision of her collective bargaining agreement that protected employees
from discharge without “just cause.” 486 U.S. at 401-02. Lingle also filed a separate
state suit alleging retaliatory discharge that the defendant removed to federal court.
Id. at 402. The Supreme Court held that the retaliatory discharge claim was
independent of the collective bargaining agreement because “resolution of the statelaw claim does not require construing the collective bargaining agreement.” Id. at

7

407. In an important bit of dicta, the Supreme Court acknowledged that the Seventh
Circuit had correctly understood that “ ‘§ 301 does not pre-empt state antidiscrimination laws, even though a suit under these laws, like a suit alleging
retaliatory discharge, requires a state court to determine whether just cause existed to
justify the discharge.’ ” Id. at 412 (quoting Lingle v. Norge Div. of Magic Chef, Inc.,
823 F.2d 1031, 1046, n.17 (7th Cir. 1987) (emphasis added)); see also Cullen v. Henry
Haywood Mem’l Hosp., 95 F. Supp. 3d 130, 137 (D. Mass. 2015) (holding that state
employment discrimination claims not dependent on interpretation of collective
bargaining agreement are not preempted under LMRA); LaRosa v. United Parcel
Serv., Inc., 23 F. Supp. 2d 136, 144 (D. Mass. 1998) (same).
Because the legal character of the Plaintiff’s claim under the Maine Equal Pay
Law is not contractual but rather depends on an anti-discrimination theory, I reject
the Defendant’s charge that the Plaintiff is artfully pleading her case to avoid
preemption. The state claim at issue does not require the court to interpret the CBA,
and, thus, there is no federal question jurisdiction.
CONCLUSION
For the reasons stated above, the Court GRANTS the Plaintiff’s motion to
remand.
SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 25th day of January, 2017.

8